RENDERED: APRIL 18, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-0919-MR
BRIAN CHARLES BAIER APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT v. FAMILY COURT DIVISION HONORABLE JEFFREY L. PRESTON, JUDGE ACTION NO. 23-CI-00294
LORI ALLISON BAIER APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND L. JONES, JUDGES.
EASTON, JUDGE: The parties (“Brian” and “Lori”) to this appeal agree that the
Greenup Family Court’s Order of June 4, 2024, setting a child support amount
must be reversed. Brian further appeals that part of the same Order awarding Lori
$750 for attorney’s fees. For the reasons stated below, we reverse and remand. FACTUAL AND PROCEDURAL HISTORY
Brian and Lori were married in 1994. At the time of their divorce,
they had two minor children. After an initial problem with a first settlement
agreement, a new Settlement Agreement (“Agreement”) was signed by both parties
on April 1, 2024. This Agreement settled all issues of custody and property
division, leaving only the calculation of child support. Paragraph 6 of the parties’
Agreement stated: “CHILD SUPPORT: The parties agree that they will provide
their W-2’s to the Court to calculate child support based on the shared formula.”1
The parties were to have joint custody of the children with equal timesharing. A
Decree of Dissolution of Marriage was entered, which incorporated the
Agreement.
On April 30, 2024, Lori filed a Motion to Establish Immediate Child
Support. The parties were unable to agree on the amount of Brian’s income to use
to establish support. He had three W-2s for 2023, as he worked as a registered
nurse part-time for multiple employers. But at the time the Agreement was signed
during the incomplete tax year of 2024, he was working full-time for one company.
Attached to Lori’s motion was a proposed child support worksheet based on her
view of Brian’s income. The monthly amount she requested from Brian was
$304.22.
1 Page 65 of Record.
-2- The family court held a brief hearing on June 3, 2024. At this
hearing, the W-2s for both parties for 2023 were entered into evidence. Brian also
testified as to his work history and his current wages. The family court indicated
that Brian actually earns more now at his one full-time job than he did working for
multiple employers in 2023. Brian requested the family court use the W-2
amounts from 2023, as that is the amount the parties agreed to use.
The family court issued an Order on June 4, 2024. In this Order, the
family court ordered Brian to pay $1,086.50 per month in child support.
Additionally, the family court ordered Brian to pay $750.00 for Lori’s attorney’s
fees. Brian filed a Motion to Alter, Amend, or Vacate, because the ordered child
support amount was approximately $700.00 more per month than what Lori
requested, and the amount did not follow the child support guidelines.
Brian also questioned the family court’s order awarding attorney’s
fees to Lori, as no explanation for the award was provided. Notably, Lori filed a
Response to Brian’s motion, stating “Petitioner does not object to the child support
obligation being amended in accordance with the proposed child support
worksheet.” Lori did, however, argue the award of attorney’s fees was fair and
reasonable. The family court summarily overruled Brian’s motion. This appeal
follows.
-3- STANDARD OF REVIEW
Appellate review of a child support award is governed by the abuse of
discretion standard. Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009).
Likewise, we review the award of attorney’s fees in family court actions for abuse
of discretion. Rumpel v. Rumpel, 438 S.W.3d 354, 363 (Ky. 2014). “The test for
an abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound reasonable principles.” Penner v.
Penner, 411 S.W.3d 775, 779-80 (Ky. App. 2013). Appellate review of a trial
court’s factual findings is governed by the clearly erroneous standard; factual
determinations supported by substantial evidence will not be disturbed. Truman v.
Lillard, 404 S.W.3d 863, 868 (Ky. App. 2012). In evaluating abuse of discretion,
this Court reviews legal conclusions applied by the trial court de novo. Ehret v.
Ehret, 601 S.W.3d 508, 511 (Ky. App. 2020).
ANALYSIS
Brian argues the family court’s award of child support was erroneous.
Lori concedes that the family court erred in the amount awarded. KRS2 Chapter
403 governs child support. KRS 403.211(2) is the statute concerning establishing
support using the child support guidelines, and it states:
At the time of initial establishment of a child support order, whether temporary or permanent, or in any
2 Kentucky Revised Statutes.
-4- proceeding to modify a support order, the child support guidelines in KRS 403.212 or 403.2122 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guidelines where their application would be unjust or inappropriate. Any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation.
The family court abused its discretion in its award of child support in
this case, as there was no evidence to support the amount of child support ordered.
Both parties correctly agreed the guidelines should be used. It appears the family
court simply looked at the incorrect box when reviewing the proposed child
support worksheet. The amount selected does not adjust for the equal parenting
time.
The family court compounded the error by summarily denying the
agreed upon attempt to correct what appeared to be an essentially clerical or
mathematical error. If the family court did intend to order an amount different than
that proposed by the parties, which was the amount based upon the guidelines, it
was required to make specific findings of fact to justify that deviation. Ciampa v.
Ciampa, 415 S.W.3d 97, 99 (Ky. App. 2013).
Brian additionally challenges the family court’s award of attorney’s
fees. He argues the family court abused its discretion because it provided no
explanation for the award. He argues Lori’s motion did not request fees, nor did
-5- she move to hold him in contempt or ask for sanctions. Brian further claims there
was not a gross disparity of income between the parties that would justify an award
of attorney’s fees. Lori counters the award was appropriate both because there is a
difference in income, and also because she had to bring a motion in order to set
child support. While Lori’s written motion did not contain a request for attorney’s
fees, she did request them during the hearing.
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RENDERED: APRIL 18, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-0919-MR
BRIAN CHARLES BAIER APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT v. FAMILY COURT DIVISION HONORABLE JEFFREY L. PRESTON, JUDGE ACTION NO. 23-CI-00294
LORI ALLISON BAIER APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND L. JONES, JUDGES.
EASTON, JUDGE: The parties (“Brian” and “Lori”) to this appeal agree that the
Greenup Family Court’s Order of June 4, 2024, setting a child support amount
must be reversed. Brian further appeals that part of the same Order awarding Lori
$750 for attorney’s fees. For the reasons stated below, we reverse and remand. FACTUAL AND PROCEDURAL HISTORY
Brian and Lori were married in 1994. At the time of their divorce,
they had two minor children. After an initial problem with a first settlement
agreement, a new Settlement Agreement (“Agreement”) was signed by both parties
on April 1, 2024. This Agreement settled all issues of custody and property
division, leaving only the calculation of child support. Paragraph 6 of the parties’
Agreement stated: “CHILD SUPPORT: The parties agree that they will provide
their W-2’s to the Court to calculate child support based on the shared formula.”1
The parties were to have joint custody of the children with equal timesharing. A
Decree of Dissolution of Marriage was entered, which incorporated the
Agreement.
On April 30, 2024, Lori filed a Motion to Establish Immediate Child
Support. The parties were unable to agree on the amount of Brian’s income to use
to establish support. He had three W-2s for 2023, as he worked as a registered
nurse part-time for multiple employers. But at the time the Agreement was signed
during the incomplete tax year of 2024, he was working full-time for one company.
Attached to Lori’s motion was a proposed child support worksheet based on her
view of Brian’s income. The monthly amount she requested from Brian was
$304.22.
1 Page 65 of Record.
-2- The family court held a brief hearing on June 3, 2024. At this
hearing, the W-2s for both parties for 2023 were entered into evidence. Brian also
testified as to his work history and his current wages. The family court indicated
that Brian actually earns more now at his one full-time job than he did working for
multiple employers in 2023. Brian requested the family court use the W-2
amounts from 2023, as that is the amount the parties agreed to use.
The family court issued an Order on June 4, 2024. In this Order, the
family court ordered Brian to pay $1,086.50 per month in child support.
Additionally, the family court ordered Brian to pay $750.00 for Lori’s attorney’s
fees. Brian filed a Motion to Alter, Amend, or Vacate, because the ordered child
support amount was approximately $700.00 more per month than what Lori
requested, and the amount did not follow the child support guidelines.
Brian also questioned the family court’s order awarding attorney’s
fees to Lori, as no explanation for the award was provided. Notably, Lori filed a
Response to Brian’s motion, stating “Petitioner does not object to the child support
obligation being amended in accordance with the proposed child support
worksheet.” Lori did, however, argue the award of attorney’s fees was fair and
reasonable. The family court summarily overruled Brian’s motion. This appeal
follows.
-3- STANDARD OF REVIEW
Appellate review of a child support award is governed by the abuse of
discretion standard. Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009).
Likewise, we review the award of attorney’s fees in family court actions for abuse
of discretion. Rumpel v. Rumpel, 438 S.W.3d 354, 363 (Ky. 2014). “The test for
an abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound reasonable principles.” Penner v.
Penner, 411 S.W.3d 775, 779-80 (Ky. App. 2013). Appellate review of a trial
court’s factual findings is governed by the clearly erroneous standard; factual
determinations supported by substantial evidence will not be disturbed. Truman v.
Lillard, 404 S.W.3d 863, 868 (Ky. App. 2012). In evaluating abuse of discretion,
this Court reviews legal conclusions applied by the trial court de novo. Ehret v.
Ehret, 601 S.W.3d 508, 511 (Ky. App. 2020).
ANALYSIS
Brian argues the family court’s award of child support was erroneous.
Lori concedes that the family court erred in the amount awarded. KRS2 Chapter
403 governs child support. KRS 403.211(2) is the statute concerning establishing
support using the child support guidelines, and it states:
At the time of initial establishment of a child support order, whether temporary or permanent, or in any
2 Kentucky Revised Statutes.
-4- proceeding to modify a support order, the child support guidelines in KRS 403.212 or 403.2122 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guidelines where their application would be unjust or inappropriate. Any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation.
The family court abused its discretion in its award of child support in
this case, as there was no evidence to support the amount of child support ordered.
Both parties correctly agreed the guidelines should be used. It appears the family
court simply looked at the incorrect box when reviewing the proposed child
support worksheet. The amount selected does not adjust for the equal parenting
time.
The family court compounded the error by summarily denying the
agreed upon attempt to correct what appeared to be an essentially clerical or
mathematical error. If the family court did intend to order an amount different than
that proposed by the parties, which was the amount based upon the guidelines, it
was required to make specific findings of fact to justify that deviation. Ciampa v.
Ciampa, 415 S.W.3d 97, 99 (Ky. App. 2013).
Brian additionally challenges the family court’s award of attorney’s
fees. He argues the family court abused its discretion because it provided no
explanation for the award. He argues Lori’s motion did not request fees, nor did
-5- she move to hold him in contempt or ask for sanctions. Brian further claims there
was not a gross disparity of income between the parties that would justify an award
of attorney’s fees. Lori counters the award was appropriate both because there is a
difference in income, and also because she had to bring a motion in order to set
child support. While Lori’s written motion did not contain a request for attorney’s
fees, she did request them during the hearing.
KRS 403.220 governs the award of attorney’s fees in dissolution
actions. It states:
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.
Brian argues there is no significant financial disparity between the
parties. But it is not required that a financial disparity exists between the parties in
order for a court to award attorney’s fees; a family court must only consider the
financial resources of both parties. Smith v. McGill, 556 S.W.3d 552, 556 (Ky.
2018). Financial disparity is still a factor for the family court to consider, but it is
not the sole factor. Id.
-6- In addition to the parties’ financial resources, there are other factors a
family court should consider in determining if an award of attorney’s fees and the
amount are appropriate. These factors include:
(a) Amount and character of services rendered.
(b) Labor, time, and trouble involved.
(c) Nature and importance of the litigation or business in which the services were rendered.
(d) Responsibility imposed.
(e) The amount of money or the value of property affected by the controversy, or involved in the employment.
(f) Skill and experience called for in the performance of the services.
(g) The professional character and standing of the attorneys.
(h) The results secured.
Additionally, obstructive tactics and conduct, which multiplied the record and the proceedings are proper considerations justify[ing] both the fact and the amount of the award.
Sexton v. Sexton, 125 S.W.3d 258, 272-73 (Ky. 2004) (internal quotation marks
and citations omitted).
“[T]he fee shifting authorized under KRS 403.220 is not intended
primarily to be punitive or sanctioning. It is intended, as noted above, to ensure
-7- that dissolution and child-custody proceedings are fair and not skewed in favor of
the party in the financially superior position.” Rumpel, supra, at 364. “The
amount of an award of attorney’s fees is committed to the sound discretion of the
trial court with good reason. That 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.” Gentry v. Gentry, 798 S.W.2d
928, 938 (Ky. 1990).
While it is within the family court’s discretion to award attorney’s
fees to a party, the Order in this case sheds no light as to the reasoning for the
award. The hearing centered around the parties’ income, so the family court may
have considered the parties’ financial resources in making its award for attorney’s
fees. But we should not make that assumption. A circuit court generally “speaks
only through written orders entered upon the official record.” Kindred Nursing
Centers Ltd. P’ship v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010). See also
Sexton, supra, at 273. Not only did the family court not make any written findings
about attorney’s fees in its Order, but there were also no oral statements made
during the hearing that indicated an award of attorney’s fees in any amount was
even being considered by the family court.
In this instance, it is unknown what factors the family court took into
consideration when awarding attorney’s fees to Lori. The portion of the order
-8- involving attorney’s fees states in its entirety: “IT IS FURTHER ORDERED that
the Respondent shall pay the Petitioner’s attorney fee of $750.00 and that same
shall be paid within 60 days of the date of this Order.”3 There were no affidavits
presented to show what fees Lori incurred for the child support hearing. There was
no evidence that Brian was obstructive or caused any delay. This does not appear
to be a contentious divorce. Other than this one hearing involving child support,
the parties reached an agreement on all other issues.
We do not suggest that any extensive or separate hearing is required to
assess attorney’s fees. Family courts have enough required hearings in performing
their duties. But there must be some information to justify the award of attorney’s
fees. It could be no more than asking the attorney, as an officer of the court, to
state the amount requested and the basis for that amount, such as time spent and
standard hourly rate for such work. With this and other financial information
typically available in a divorce case, the family court could decide whether to
award attorney’s fees and, if so, in what proper amount.
CONCLUSION
Accordingly, we reverse and remand the Greenup Family Court’s
Order. The family court shall either enter an order in conformity with the child
support guidelines in KRS 403.212, which is what the parties sought, or make
3 Record at Page 105.
-9- sufficient findings of fact to justify any deviation from those guidelines.
Furthermore, the family court shall reevaluate its award of attorney’s fees and
make appropriate findings of fact to support any award it chooses to make on
remand.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert T. Renfroe Tracy D. Frye Greenup, Kentucky Marie E. Troxler Whitney N. Davis Russell, Kentucky
-10-