RENDERED: SEPTEMBER 27, 2018

TO BE PUBLISHED

2017-SC-000395-DGE

LAURA FAYE SMITH

V.

ON REVIEW FROM COURT OF APPEALS

CASE NO. 2016-CA-001255-MR

JEFFERSON CIRCUIT COURT NO. 09-CI-502860

JIMMY HOWARD MCGILL JR.

APPELLANT

APPELLEE

OPINION OF THE COURT BY JUSTICE WRIGHT

REVERSING AND REINSTATING

I. BACKGROUND

Appellant, Laura Faye Smith, and Appellee, Jimmy Howard McGill,

married in 1994 and divorced in 2005 in Arkansas. The Arkansas trial court

awarded Laura with primary residential custody of their three children, with

Jimmy having unsupervised visitation. Laura subsequently moved to

Kentucky and filed the decree in Jefferson Family Court in 2009.i The parties’

custody and support action has since been in that court. The matter currently

> The Kentucky and Arkansas judges teleconferenced regarding the proper

jurisdiction for the case. Thereafter, the Arkansas judge allowed the parties to submit

evidence before holding a hearing to determine whether it would exercise continuing,

exclusive jurisdiction over the case. Both parties appeared at the hearing personally

and by counsel. The Arkansas court declined “to exercise continuing, exclusive

jurisdiction,” as the “evidence necessary to support or disprove [Jimmy’s] allegations

exists in the State of Kentucky.” The court went on to find that “the Children, who are

located in Kentucky, should not be forced to Arkansas to hear these matters due to

the necessary expense and potential disruption to the lives of the Children,” and that

“a more convenient forum exists” in Kentucky.
before the Court arose when Jimmy filed a motion to become the primary

residential custodian of his and Laura’s two youngest daughters (the oldest

having already been emancipated). The Jefferson Family Court denied Jimmy’s

motion for primaiy custody in an order dated January 21, 2016.

After the trial court’s January 21 order, Laura made a motion for

attorney’s fees. On June 3, 2016, the court ordered Jimmy to pay the full

amount of Laura’s attorney’s fees, totaling $26,352.23. Jimmy moved the

court to alter, amend or vacate both the January 21 order denying him primary

residential custody and the June 3 order awarding Laura’s attorney’s fees. On

August 12, 2016, the court denied Jimmy’s motion to alter, amend, or vacate

its January 21 custody order. However, the court amended the June 3 order

awarding attorney’s fees. Upon reviewing Laura’s annual income of $41,900

<

and Jimmy’s annual income of $32,500, the court found it improper to order

Jimmy to pay Laura’s full attorney’s fees and reduced the amount to $10,000.

Jimmy appealed this order to the Court of Appeals. The Court of Appeals

affirmed the trial court’s decision pertaining to the custody of the children and

Jimmy did not appeal that ruling to this Court. However, the Court of Appeals

reversed and remanded Laura’s award of attorney’s fees determining that no

actual disparity existed between Laura’s and Jimmy’s income to justify an

award of attorney’s fees to Laura pursuant to KRS 403.220. The Court of

Appeals held that the trial court is free to issue an order for attorney’s fees

pursuant to CR 37, if it believes it is necessary and if the record supports such
a measure. Laura asked this Court for discretionary review, which we granted.

We now reverse the Court of Appeals.

II. ANALYSIS

In its order granting Laura’s motion for attorney’s fees, the trial court

cited KRS 403.220 and Gentry v. Gentry, 798 S.W.2d 928,.938 (Ky. 1990).

Jimmy moved the court to alter, amend, or vacate its order awarding attorney’s

fees. In its order on Jimmy’s motion, the trial court stated it was under the

mistaken belief that Laura was not employed. Therefore, the court believed

Laura had no income when it initially analyzed the parties’ financial resources.

The court then stated that Laura’s annual income was actually $41,900 and

Jimmy’s annual income was $32,500. The order stated that “it was improper

to order Respondent to pay Petitioner’s full attorney’s fee” and went on to quote

Gentry, which states “many of the costs and fees were unnecessary in the

sense that a good deal of the court’s time and a substantial part of the costs

and fees assessed could have been avoided by candor and cooperation.” 798

S.W.2d at 936. Preceding the citation to Gentry, the court amended the award

of attorney’s fees to $10,000 as a more appropriate sum.

Laura asserts that “Jimmy, th[r]ough his actions, subjected not

only Laura but also the Minor Children to litigation and an IFA [Issue

Focused Assessment] all of which were very expensive . . . .” Laura

contends that Jimmy behaved in such a way that would allow the court

to sanction him through an award of attorney’s fees.
In Gentry, the husband, Tom, argued that the trial court erred by

awarding attorney’s fees and costs to his wife, Kathy. This Court stated

“[i]n this instance, financial inequality justifies the award, KRS 403.220.

Tom’s obstructive tactics and conduct, which multiplied the record and

the proceedings, justify both the fact and the amount of the award.”

Gentry, 798 S.W.2d at 938. Further, “the circuit court found that a

significant portion of the attorney’s fees was incurred as a result of Tom

Gentry’s obstructive tactics and refusal to cooperate in the proceedings.”

Id. However, much of the discussion of attorney’s fees in Gentry seems

to be based primarily upon an award of expenses pursuant to CR 37.01,

which deals with discovery. The Court of Appeals held that the present

case should be remanded to the trial court to determine if attorney’s fees

were justified pursuant to CR 37; however, the parties’ arguments are

not based on discovery. Therefore, that rule has no applicability here.

Laura argues that the plain language of KRS 403.220 does not

require a financial imbalance for an award of attorney’s fees. She insists

the statute merely requires the trial court to consider the financial

resources of both parties in determining the reasonable amount for

attorney’s fees. Jimmy contends that the requisite factors did not exist

for an award of attorney’s fees. Further, he contends that case law

prohibits the court from awarding attorney’s fees based on KRS 403.220

without a finding of disparity of income. The Court of Appeals held that:

“[a]s even Gentry holds, an actual disparity must exist before an award
based also upon a party’s conduct can be made. No such disparity

existed according to the evidence the trial court cited and relied upon for

the award of attorney’s fees to Laura.” For the following reasons, we

agree with Laura and hold that the trial court need not find a financial

disparity before awarding attorney’s fees—that it must only consider the

financial resources of the parties.

For more than forty years, this Court has interpreted KRS 403.220

to require a disparity of income as the threshold requirement in awarding

attorney’s fees. For example, in Sullivan v. Levin, 555 S.W.2d 261, 263

(Ky. 1977), this Court stated “[i]n other words, the allowance is

authorized by the statute [KRS 403.220] only when it is supported by an

imbalance in the financial resources of the respective parties.” In that

case, the Sullivans divorced and reconciled, and the wife’s attorney

brought an action for his fees. The Court allowed the fees.

Sullivan was overruled by Hale v. Hale, 772 S.W.2d 628 (Ky. 1989),

on the issue of whether attorney’s fees could be paid directly to counsel.

However, Hale upheld Sullivan’s interpretation requiring a financial

imbalance in order for a court to award attorney’s fees pursuant to KRS

403.220. This Court held “[t]he contention of the respondent is that KRS

403.220 is solely for the benefit of the client and not the attorney; that its

purpose is simply to permit recovery of a part or all of the expenses

incurred in a divorce case by a party suffering from an unfavorable

financial imbalance.” Id. at 629.
This interpretation was further upheld in Bishir v. Bishir, 698

S.W.2d 823, 826 (Ky. 1985). In Bishir, the wife was awarded attorney’s

fees for post-judgment proceedings. This Court held that there were

sufficient findings in the record to support the award of the fee. We

stated “KRS 403.220 permits a court to order a party to pay the adverse

party’s attorney’s fees ‘after considering the financial resources of both

parties.’ Such an order is appropriate ‘only when it is supported by an

imbalance in the financial resources of the respective parties.’” Id. (citing

Sullivan, 555 S.W.2d at 263).

More recently, in Neidlinger v. Neidlinger, 52 S.W.3d 513, 519 (Ky.

2001) this Court held “KRS 403.220 authorizes a trial court to order one

party to a divorce action to pay a ‘reasonable amount’ for the attorney’s

fees of the other party, but only if there exists a disparity in the relative

financial resources of the parties in favor of the payor.” Id. (citing

Sullivan, 555 S.W.2d at 263).

As detailed above, this interpretation has long stood in this Court.

However, we will no longer read a requirement into the statute that is not

found within its plain language. It is the job of this Court to neither

make law nor set policy—and that is what these prior opinions

accomplished by adding to the unambiguous words of the legislature.

“In a democracy, the power to make the law rests with those chosen by

the people. [A court’s] role is more confined—‘to say what the law is.”’

King v. Burwell, 135 S. Ct. 2480, 2496 (2015)(citing Marbury v. Madison,
5 U.S. 137, 176 (1803)). We guard against overstepping those bounds—

and correct any past infractions when we revisit them. Therefore, today

we overrule this line of cases insofar as they require a financial disparity

in order for attorney’s fees to be awarded and return to the plain

language of the statute. That language requires only that the trial court

consider the financial resources of the parties before awarding attorney’s

fees—not that a financial disparity exist.

When a statute is plain and unambiguous, we need look no further

than the statutory language in interpreting it. Delta Air Lines, Inc. v.

Commonwealth, Revenue Cabinet, 689 S.W.2d 14 (Ky. 1985)

(“An unambiguous statute is to be applied without resort to any outside

aids.”). “This Court has repeatedly held that statutes must be given a

literal interpretation unless they are ambiguous and if the words are not

ambiguous, no statutory construction is required.” Commonwealth v.

Plowman, 86 S.W.3d 47, 49 (Ky. 2002).

KRS 403.220 reads:

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 ofjudgment.

The court may order that the amount be paid directly to the

attorney, who may enforce the order in his name.

The statutory language here is plain: after a trial court considers the parties’

financial resources, it may order one party to pay a reasonable amount of the

other party’s attorney’s fees. The statute does not require that a financial

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disparity must exist in order for the trial court to do so; rather, that language is

a creature of case law born out of this Court’s decisions—and today, we slay

this forty-year-old dragon hatched from precedent.

While financial disparity is no longer a threshold requirement which

must be met in order for a trial court to award attorney’s fees, we note that the

financial disparity is still a viable factor for trial courts to consider in following

the statute and looking at the parties’ total financial picture. Here, the trial

court did just what the statute directs—it considered the financial resources of

the parties. Admittedly, the court was erroneous in its first consideration, as it

believed Laura was unemployed when it made its initial ruling awarding her

attorney’s fees. However, the trial court corrected this error when it amended

that order to award Laura only $10,000 in fees. In its second order, the trial

court specifically discussed and listed the parties’ incomes.

Because the trial court followed the dictates of the statute, it did not err

in its award of attorney’s fees. We agree with the portion of Gentry which

holds, “[t]he 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.” 798

S.W.2d at 938. The trial court was certainly in the best decision to observe the

lack of candor and cooperation which led to the accrual of many of the fees in

this case—which it noted in its order.

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Because the trial court acted within its discretion when assessing

attorney’s fees against Jimmy after considering the parties’ financial resources,

we reverse the Court of Appeals and reinstate the trial court’s judgment.

III. CONCLUSION

For the foregoing reasons, we overrule the above cited line of cases

requiring trial courts to find a financial disparity before awarding

attorney’s fees, reverse the Court of Appeals, and reinstate the judgment

of the Jefferson Family Court.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Louis Irwin Waterman

Goldberg Simpson, LLC

Allison Spencer Russell

Goldberg Simpson LLC

Megan Keane

Goldberg Simpson LLC

COUNSEL FOR APPELLEE:

Michael Richard Slaughter

Westport, KY