Landmark family law attorney fee published decision from Ky Supreme Court

Smith v. McGill

After rendering a custody decision in favor of mother, the trial court ordered father to pay mother’s attorney’s fees pursuant to KRS 403.220. The trial court made its decision after considering the father’s annual  income of $32,000.00, the mother’s annual income of $41,000.00,  and the father's  lack of candor and cooperation which led to the accrual of many of the fees. The Court of Appeals reversed and remanded the trial court decision, determining that no disparity of income existed between mother and father’s income to justify an award of attorney’s fees pursuant to KRS 403.220.

The mother petitioned the Supreme Court for discretionary review, arguing that the plain language of KRS. 403.220 does not require a financial imbalance for an award of attorney’s fees, but only requires the court to consider the financial resources of both parties in determining if attorney’s fees should be awarded. Overturning forty-years of precedent, the Supreme Court held that KRS 403.220 does not require that a financial disparity must exist for the trial court to order one party to pay a reasonable amount of the other party’s attorney’s fees in a dissolution of marriage action. However, the Court noted that financial disparity “is still a viable factor for trial courts to consider in following the statute and looking at the parties’ total financial picture.”

The Supreme Court found that the trial court acted within its discretion when assessing attorney’s fees against father after giving consideration to the parties’ financial resources and reversed the decision of the Court of Appeals.

Digested by: Emily Cecconi