LINDA LOU VATTER; DAVID B. MOUR; BOROWITZ & GOLDSMITH, PLC v. DAVID VATTER
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RENDERED: AUGUST 9, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001622-MR
LINDA LOU VATTER;
DAVID B. MOUR;
BOROWITZ & GOLDSMITH, PLC
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDA M. HELLMANN, JUDGE
ACTION NO. 93-FC-001372
v.
DAVID VATTER
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
KNOPF, MILLER, AND TACKETT, JUDGES.
MILLER, JUDGE:
Linda Lou Vatter brings this appeal from a June
27, 2001 order of the Jefferson Circuit Court.
We vacate and
remand.
The record indicates that Linda and David Vatter were
married on December 13, 1980 and divorced on December 2, 1994.
Under a settlement agreement, they enjoyed joint custody of their
minor child with Linda being primary residential custodian.
David agreed to pay $185.00 per month in child support, and a
clothing allowance for the child of $450.00 per year.
In August of 1999, Linda filed a motion to increase
child support.
It was referred to a Domestic Relations
Commissioner for hearing.
In October of 2000, David filed a
motion to modify child support.
Therein, he sought to reduce his
monthly support payment and eliminate the clothing allowance.
The family court ultimately increased child support to $341.62
per month, and concluded that the clothing allowance should not
be eliminated.
David pursued a direct appeal to this court in
Appeal No. 2001-CA-000595-MR.
After a settlement conference, the
parties reached a settlement of the appeal, which was
memorialized by an agreed order entered June 20, 2001.
In these
proceedings, Linda was assisted by David B. Moore and the law
firm of Borowitz and Goldsmith, PLC.
In March of 2001, Linda filed a motion for attorney
fees and costs under Kentucky Revised Statutes 403.220.
Therein,
Linda sought attorney's fees and costs in the amount of
$9,068.90.
The matter again was referred to a Domestic Relations
Commissioner.
In her report and recommendation, the Commissioner
awarded Linda only $750.00 in attorney's fees and costs.
Exceptions were filed to the report.
On June 26, 2001, the
family court entered an order “confirming” the commissioner's
report.
This appeal follows.
Linda Vatter, Borowitz & Goldsmith, PLC, and David B.
Mour, Esquire (collectively referred to as appellants) contend
the family court failed to exercise its discretion as provided
under Ky. R. Civ. P. (CR) 53.06(2).
Specifically, appellants
assert that the family court “labored under the misconception
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that it lacked authority to take any action, and as a result,
failed to exercise its discretion with respect to its review of
the action recommended by the Domestic Relations Commissioner.”
Appellants think the family court's review of the Commissioner's
recommendations is both limited and deferential.
In support
thereof, appellants cite to the following utterances of the
court:
Mr. Mour, if I were in your position to
receive $750.00 from the other side in a
court order based upon the fact that you had
expended over $9,000.00 in this matter, I
understand your argument about reasonable.
My job as a judge reviewing recommendations
of a Commissioner is, number 1, I do not
disturb those recommendations. I do not rule
over those recommendations unless I feel the
Commissioner, number one, side-stepped it and
didn't consider it, and in this case I feel
the Commissioner did consider it, did know
the total sum, did know why in part why it
was high because of the self-employment. She
did use the word reasonable in awarding the
$750.00 knowing that $750.00 is not anywhere
near the $9,000.00. Ms., Commissioner
Guenther did consider and did state the
disparity in incomes of 71% versus 29% and
so, I find that I have no other choice than
to affirm and to sign the Commissioner's
recommendations.
(Appellants' Brief at 8).
Upon review of the above, we, too, believe that the
family court may have been mistaken concerning its “review” of
the Commissioner's action.
The law is clear that the court has
“complete discretion” in its use of a commissioner's report.
53.06.
CR
See Eiland v. Ferrell, Ky., 937 S.W.2d 713 (1997); Haley
v. Haley, Ky. App., 573 S.W.2d 354 (1978).
or reject the report in whole or part.
It may adopt, modify
The Court is not
compelled to give findings of the commissioner deference, and may
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even “receive further evidence” upon an issue.
CR 53.06(2).
A
commissioner is merely an agent of the court, and a report and
recommendations has no legal effect until acted upon by the
court.
Upon remand, we direct the family court to reconsider
the amount of attorney's fees and costs.
In so doing, the family
court shall have complete discretion to adopt, modify, or reject
the commissioner's report in whole or in part.
For the foregoing reasons, the order of the Jefferson
Circuit Court is vacated and this cause is remanded for
proceedings consistent with this opinion.
TACKETT, JUDGE, CONCURS.
KNOPF, JUDGE, DISSENTS.
KNOPF, JUDGE, DISSENTING:
from the majority opinion.
Respectfully I must dissent
First, I disagree with the majority
that the trial court mis-perceived the scope of its review of the
commissioner’s report.
The statements by the trial court are
somewhat confusing and could lead one to that conclusion.
However, the trial court expressly recognized that it had the
authority to overrule the commissioner’s recommendations.
The
court merely added that it was not inclined to do so unless there
was some showing that the commissioner failed to consider a
significant factual or legal matter.
Although this deference to
the commissioner’s findings is somewhat greater than CR 53.06
requires, I am not convinced that it goes beyond what the rule
allows.
Indeed, a trial court has the broadest possible
discretion with respect to the use it makes of commissioner’s
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reports.1
That discretion necessarily includes the authority to
adopt the commissioner’s report in the absence of any convincing
evidence that the commissioner mis-perceived a controlling issue
of fact or law.
Moreover, the trial court adopted the commissioner’s
findings as its own, and consequently, our review is limited to
the sufficiency of those findings.2
I have concerns about some
of the contradictory findings which the commissioner made.
The
commissioner’s report seems to suggest that some of the delay and
expense in bringing Ms. Vatter’s motion to a hearing was caused
by changes in trial counsel on both sides.
However, the
commissioner also found that much of the attorney fees were
incurred due to the unusual problems of discovering Mr. Vatter’s
self-employment income.
Furthermore, the commissioner also found
that Mr. Vatter earns 71% of the parties combined parental
income, whereas Ms. Vatter earns only 29%.
Curiously deficient
from the commissioner’s report is any express finding that the
attorney fees incurred by Ms. Vatter were unreasonable.
Likewise, the commissioner gave no reason for requiring Ms.
Vatter to assume responsibility for the bulk of these fees.
These findings would suggest that an award of most of the
requested attorney fees might be appropriate.3
1
Eiland v. Ferrell, Ky., 937 S.W.2d 713, 716 (1997).
2
CR 52.01.
3
Gentry v. Gentry, Ky., 798 S.W.2d 928 (1990).
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Nevertheless, trial courts are accorded wide discretion
in awarding attorney fees.4
Ms. Vatter requested a stunning sum
of $8,715.00 in attorney fees and $353.90 in costs for a total of
$9,068.90.
Ms. Vatter alleged that she incurred these costs in
support of her motion to modify child support for one twelveyear-old child.
The recommendation to award only $750.00 implies
that the commissioner found the higher amount to be clearly
excessive under the circumstances.
This conclusion appears reasonable given the evidence.
Although there is a disparity of income between the parties, Mr.
Vatter earns $2,526.67 per month, and Ms. Vatter is voluntarily
underemployed with an imputed monthly income of $1,040.00.
Furthermore, child support was increased from $185.00 per month
(plus an annual clothing allowance of $450.00) to $341.62 per
month.
These amounts demonstrate that neither party has such
substantial resources as to warrant the fees incurred in support
of this motion.
Furthermore, in the absence of a bad-faith concealment
of income, there needs to be a rational basis for the amount of
attorney fees expended on discovery in support of a motion to
increase child support.
case.
There is no such allegation in this
Consequently, I agree with the trial court that the amount
sought by Ms. Vatter and her attorney was not justified under the
facts of this case.
While the commissioner’s findings are
sketchy on this point, there is no indication that Ms. Vatter
4
See KRS 403.220. See also Neidlinger v. Neidlinger, Ky.,
52 S.W.3d 513, 519 (2001); Glidewell v. Glidewell, Ky. App., 859
S.W.2d 675 (1993).
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asked the court for more specific findings.
Thus, she has waived
any insufficiency in the court’s findings.5
Consequently, I see
no reason to remand this action back to the trial court for
additional proceedings, incurring yet more attorney fees.
Therefore, I would affirm the trial court’s award of attorney
fees in its entirety and put this matter to rest.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
David B. Mour
Jeffrey A. Cross
Louisville, Kentucky
Richard E. Cooper
Jennifer Jordan Hall
Louisville, Kentucky
5
CR 52.04
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