Olaimey v. Turk

Court of Appeals of Arkansas

Olaimey v. Turk

799 S.W.2d 572, 33 Ark. App. 28, 1990 Ark. App. LEXIS 666

CourtCourt of Appeals of Arkansas

DecidedDecember 12, 1990

DocketCA 89-502

StatusPublished

Cited by3 cases

This text of 799 S.W.2d 572 (Olaimey v. Turk) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Olaimey v. Turk, 799 S.W.2d 572, 33 Ark. App. 28, 1990 Ark. App. LEXIS 666 (Ark. Ct. App. 1990).

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Opinions

Per Curiam.

In this case, a panel of this court affirmed the ruling of the chancellor granting appellee’s petition for arrear-ages in child support. Appellee has submitted a motion requesting attorney’s fees and costs incurred on appeal. Appellant has responded agreeing to an award of costs, but denying appellee’s entitlement to attorney’s fees.

In Elkins v. Coulson, 293 Ark. 539, 739 S.W.2d 675 (1987), the supreme court had before it a petition for a writ of prohibition contesting our authority to award attorneys’ fees on appeal. The court ultimately denied the writ and dismissed the petition on procedural grounds, but in doing so, the court stated that “[t]he court of appeals clearly has jurisdiction and authority to award attorneys’ fees in divorce cases.” The court mentioned, however, in a footnote, citing the case of Floyd v. Isbell, 211 Ark. 631, 201 S.W.2d 755 (1947) that it may have been error to have awarded fees in that instance. In Floyd v. Isbell, the supreme court disallowed fees on appeal because the underlying action was to set aside a decree, and that type of action was not covered by the statute authorizing the recovery of attorneys’ fees, which is now codified at Ark Code Ann. § 9-12-309(b) (Supp. 1989). Similarly, Elkins, supra, was an action to set aside a decree.

The clear implication from the above-cited authorities is that attorneys’ fees are recoverable on appeal in domestic relations actions for “the enforcement of alimony, maintenance and support,” as governed by the statute. Since the instant case involves the enforcement of child support, we do have the authority to award attorneys’ fees on appeal.

The question remains, however, as to whether we should award fees in this case, and if so, what amount. In her motion, appellee states that 10.25 hours were spent preparing the appeal at $100 an hour for a total of $1,025, exclusive of costs named at $172.40.

Judging by the issues raised and the brief submitted, this is a reasonable request. In this case appellee was compelled to hire an attorney to enforce her legal rights granted under court order. Even though fees were allowed below, this is no reason to deny fees on appeal. It is rare that the fees awarded by the court adequately compensate the parties for the actual fees incurred. Appeals necessarily require additional time and the costs associated with appeals are rapidly increasing. It would be harsh not to compensate a party for defending a court order on appeal, simply because they recovered attorney’s fees at the trial level.

We have seen a metamorphosis in our society’s attitude toward fees. We have shifted the burden of some costs to the wrongdoer or to those who prosecute frivolous actions. We are aware of the ever increasing specialized knowledge needed to become an attorney and to sharpen these skills, as well as the increased cost of private practice. It is surely harsh and unrealistic to deny those persons who perhaps may be the least able to afford fees, i.e. those who attempt to collect arrearages in child support, additional funds on appeal. Far from having a chilling effect on litigation, it may prompt non-custodial parents to voluntarily or more willingly pay sums required under court order.

Therefore, we grant appellee’s motion for attorney’s fees in the amount of $1,025 with costs of $172.40.

Mayfield, J., dissents. Jennings, J., not participating.

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Per Curiam.

In this case, a panel of this court affirmed the ruling of the chancellor granting appellee’s petition for arrear-ages in child support. Appellee has submitted a motion requesting attorney’s fees and costs incurred on appeal. Appellant has responded agreeing to an award of costs, but denying appellee’s entitlement to attorney’s fees.

In Elkins v. Coulson, 293 Ark. 539, 739 S.W.2d 675 (1987), the supreme court had before it a petition for a writ of prohibition contesting our authority to award attorneys’ fees on appeal. The court ultimately denied the writ and dismissed the petition on procedural grounds, but in doing so, the court stated that “[t]he court of appeals clearly has jurisdiction and authority to award attorneys’ fees in divorce cases.” The court mentioned, however, in a footnote, citing the case of Floyd v. Isbell, 211 Ark. 631, 201 S.W.2d 755 (1947) that it may have been error to have awarded fees in that instance. In Floyd v. Isbell, the supreme court disallowed fees on appeal because the underlying action was to set aside a decree, and that type of action was not covered by the statute authorizing the recovery of attorneys’ fees, which is now codified at Ark Code Ann. § 9-12-309(b) (Supp. 1989). Similarly, Elkins, supra, was an action to set aside a decree.

The clear implication from the above-cited authorities is that attorneys’ fees are recoverable on appeal in domestic relations actions for “the enforcement of alimony, maintenance and support,” as governed by the statute. Since the instant case involves the enforcement of child support, we do have the authority to award attorneys’ fees on appeal.

The question remains, however, as to whether we should award fees in this case, and if so, what amount. In her motion, appellee states that 10.25 hours were spent preparing the appeal at $100 an hour for a total of $1,025, exclusive of costs named at $172.40.

Judging by the issues raised and the brief submitted, this is a reasonable request. In this case appellee was compelled to hire an attorney to enforce her legal rights granted under court order. Even though fees were allowed below, this is no reason to deny fees on appeal. It is rare that the fees awarded by the court adequately compensate the parties for the actual fees incurred. Appeals necessarily require additional time and the costs associated with appeals are rapidly increasing. It would be harsh not to compensate a party for defending a court order on appeal, simply because they recovered attorney’s fees at the trial level.

We have seen a metamorphosis in our society’s attitude toward fees. We have shifted the burden of some costs to the wrongdoer or to those who prosecute frivolous actions. We are aware of the ever increasing specialized knowledge needed to become an attorney and to sharpen these skills, as well as the increased cost of private practice. It is surely harsh and unrealistic to deny those persons who perhaps may be the least able to afford fees, i.e. those who attempt to collect arrearages in child support, additional funds on appeal. Far from having a chilling effect on litigation, it may prompt non-custodial parents to voluntarily or more willingly pay sums required under court order.

Therefore, we grant appellee’s motion for attorney’s fees in the amount of $1,025 with costs of $172.40.

Mayfield, J., dissents. Jennings, J., not participating.

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799 S.W.2d 572, 33 Ark. App. 28, 1990 Ark. App. LEXIS 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olaimey-v-turk-arkctapp-1990.

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