FAMILY LAW: HINSHAW V. HINSHAW (COA 11/17/2006)

HINSHAW V. HINSHAW
FAMILY LAW:  ATTORNEY FEES;  Amending final judgment on appeal
2005-CA-002510
PUBLISHED:  REVERSING;  COMBS
DATE RENDERED: 11/17/2006

Jacqueline Ann Hinshaw appeals from a post-dissolution order of the familyh court granting a motion for relief filed by attorneys for her former husband (Ren) to amend its first judgment as to payment of attorneys’ fees. Jacqueline had originally been ordered to pay toward Ren’s attorneys’ fees.

The family court amended that judgment, ordering her to pay the fees directly to the attorneys and providing that the law firm was entitled to enforce the order in its name.   COA reversed.

CR 60.01 provides for the correction of clerical mistakes in judgments. The provisions of KRS 403.220 authorize and permit a family court to order an amount of attorneys’ fees to be paid by one spouse directly to the attorneys of the other spouse, but the court is not required to do so. In this case, Ren’s motion for fees did not request that any award be ordered to be paid directly to his attorneys. Before entry of the judgment, Ren was the primary obligor with respect to his
attorneys’ fees.

Following entry of the judgment, Ren’s status remained unchanged. The law firm was an incidental beneficiary of the terms of the judgment, still wholly dependent upon Ren to satisfy its fees. After the judgment was amended, however, the law firm had a direct claim to the fees awarded.

In light of these substantive ramifications, the  original decision of the family court not to make such an award directly to Ren’s attorneys assumes legal significance far beyond the status of a simple clerical mistake.  Furthermore, the provisions of CR 60.01 require that any correction of a clerical mistake sought while an appeal is pending may be made only by leave of the appellate court.  CR 60.02(f) gives a trial court authority to relieve “a party or his legal representative” from its final judgment for any reason “of an extraordinary nature. . . .”   These circumstances at issue do not qualify as so exceptional as to justify relief.   

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