RENDERED: JUNE 30, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0433-MR

DANIEL HEEKIN APPELLANT

APPEAL FROM JEFFERSON FAMILY COURT

v. HONORABLE DERWIN L. WEBB, JUDGE

ACTION NO. 20-CI-501777

NICOLE HEEKIN APPELLEE

AND

NO. 2023-CA-0180-MR

NICOLE HEEKIN CROSS-APPELLANT

APPEAL FROM JEFFERSON FAMILY COURT

v. HONORABLE DERWIN L. WEBB, JUDGE

ACTION NO. 20-CI-501777

DANIEL HEEKIN CROSS-APPELLEE
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OPINION

AFFIRMING IN PART,

REVERSING IN PART,

AND REMANDING

IN APPEAL NO. 2022-CA-0433-MR; AND 

REVERSING AND REMANDING

IN APPEAL NO. 2023-CA-0180-MR

**   **  **

BEFORE: COMBS, EASTON, AND ECKERLE, JUDGES.

ECKERLE, JUDGE: The appeal and cross-appeal arise from a judgment and postjudgment orders of the Jefferson Family Court in the dissolution of the marriage of 

Daniel Heekin (Husband) and Nicole Heekin (Wife). In his direct appeal, Husband 

argues that the Family Court erred in finding that he had dissipated marital assets 

and abused its discretion in its award of maintenance and in its orders setting his 

parenting time. In her cross-appeal, Wife argues that the Family Court abused its 

discretion by setting aside its earlier award of attorney fees to her prior counsel.

In the direct appeal, we conclude that the Family Court did not clearly 

err in finding that Husband dissipated marital assets and by charging that 

dissipation against him in its division of other marital property. We further 

conclude that the Family Court did not abuse its discretion by awarding Wife 

permanent, prospective, open-ended maintenance. However, the Family Court 

failed to make sufficient findings to justify its retroactive award of maintenance to 

Wife. Furthermore, the Family Court’s findings are not sufficient to determine a 
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reasonable basis for its decision to reduce Husband’s parenting time. Hence, we 

affirm in part, reverse in part, and remand for additional findings on these issues.

In the cross-appeal, we conclude that the Family Court lacked a 

reasonable basis to set aside its prior award of attorney fees to Wife’s former 

counsel. However, there was no evidence of record which would allow the Family 

Court to find that those fees were reasonable, and the Family Court did not so find. 

Hence, we reverse the Family Court’s denial of attorney fees, and we remand this 

matter for an additional hearing and findings as set forth below.

I. Facts and Procedural History

Husband and Wife were married in July 2012 and separated in August 

2020. Wife was born and raised in Malta, and the parties resided there for a short 

time after the marriage. Two children were born during the marriage: J.H. (born 

2016) and E.H. (born 2018). J.H. has extraordinary medical needs and 

developmental delays, and he requires extensive individual care.

Husband works as an accountant/auditor, most recently for KPMG, 

L.L.C. Wife works part-time as a clinical counselor and therapist. In addition, 

Wife was the primary caretaker for both children, including J.H.’s special needs. 

However, there was testimony that Husband has also provided at-home care for 

J.H. when Wife was absent.
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Husband filed a petition for dissolution of the marriage on August 5, 

2020. Shortly after the filing of the petition, Wife filed motions for temporary 

child support and maintenance. The Family Court conducted hearings on the 

motions in early 2021. Shortly thereafter, the Family Court made findings and 

entered an award of temporary child support. However, the Family Court did not 

rule on Wife’s motion for temporary maintenance.

In December of 2021, the matter proceeded to a bench trial on the 

remaining issues of division of marital property; custody, visitation, and support of 

the parties’ children; and Wife’s request for permanent maintenance. Thereafter, 

on January 31, 2022, the Family Court entered findings of fact, conclusions of law,

and an order on the disputed issues. Among other things, the Court addressed each 

party’s allegations that the other improperly transferred marital funds during the 

period of separation. The Family Court found that Wife had transferred 

$57,229.00 from a joint account, and that Husband had transferred $40,573.00 

from an investment account. The Family Court did not characterize the former 

transfer as a dissipation, but stated that it would “balance equity in other assets to 

account for the undisputed transfers of marital funds.” On the other hand, the 

Family Court characterized the latter transfer as a dissipation and charged that 

amount against Husband’s equity in the marital residence.
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On the issue of maintenance, the Family Court found that Wife was 

unable to support herself at the level established during the marriage either through 

marital property apportioned to her or through appropriate employment. The Court 

noted that Wife’s responsibilities as primary caretaker for J.H. left her unable to 

work full-time. Consequently, the Family Court awarded her open-ended 

maintenance of $3,000.00 per month. The Court designated that the award would 

be retroactive to September 20, 2020, which was the date of Wife’s motion for 

temporary maintenance.

The Family Court previously entered an agreed order of joint custody 

and a parenting schedule for both children. The Court addressed Wife’s motion to 

modify the parenting schedule to eliminate Husband’s overnight stay with the 

children on Wednesday. The Family Court granted the motion, finding that 

Husband “has demonstrated a lack of knowledge of or an unwillingness to comply 

with the medical needs of the children, especially J.H.” Finally, the Family Court 

directed Husband to pay $30,000.00 of Wife’s attorney fees directly to her prior 

counsel.

Both parties filed motions to alter, amend, or vacate this order. CR1

59.05. On April 1, 2022, the Family Court granted the motions in part and denied

1 Kentucky Rules of Civil Procedure.
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them in part. On the division of marital assets, the Family Court addressed 

Husband’s objections to the Court’s finding that he had dissipated marital assets in 

the investment account. The Court found that Husband withdrew $40,573.00 from 

the account and used the funds for his attorney fees, trips, dates, and some of his 

living expenses. Because Husband had access to other assets for these expenses, 

the Family Court found that they were not justified and amounted to a dissipation 

of marital assets. Likewise, the Court found that Wife had transferred $57,229.00 

from a joint account and used these funds for personal expenses and attorney fees. 

The Court again declined to characterize this as a dissipation but found that the 

amounts spent on attorney fees were not marital in nature.

On the issue of maintenance, the Family Court expanded its findings 

regarding Wife’s ability to work full-time and support herself. The Court stated 

that it awarded open-ended maintenance because Wife is unable to work full-time 

while also serving as primary caretaker for J.H. The Court also noted that 

Husband has a considerably greater earning capacity and does not have the 

obligations of caretaking for the children. 

The Family Court reiterated its prior decision to eliminate Husband’s 

Wednesday-night timesharing. The Court found that regular overnight visits 

during the school week would be overly disruptive. The Court also noted the 

testimony that Husband does not have adequate equipment for J.H.’s home therapy 
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and that he does not have appropriate knowledge of the child’s exercises. The 

Family Court also stated that Husband “has made no effort to obtain the necessary 

equipment or receive the training that he needs to adequately work with the 

children while they are in his care.” Thus, the Court denied Husband’s request to 

reinstate Wednesday-night overnight parenting time. 

Finally, the Family Court vacated its award of attorney fees to Wife’s 

counsel, “as it appears that [Wife] is contesting the same.” This appeal and crossappeal followed. Additional facts will be set forth below as necessary.

II. Dissipation of Marital Assets

In his appeal, Husband first argues that the Family Court erred by 

finding that he had dissipated $40,573.00 from the investment account and 

charging that amount against his interest in the marital residence. Although he 

admits to removing those funds from the investment account, he argues that Wife 

failed to prove his intent to deprive her of marital assets or that the funds were 

expended for a non-marital purpose. Rather, he contends that he merely used the 

funds in the same manner that Wife used the $57,229.00 that she took from the 

parties’ joint accounts.

A court may find that a party dissipated marital assets when it is 

satisfied by a preponderance of the evidence that marital property was expended 

during a period when the parties were separated or dissolution was impending, and 
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there is a clear showing of intent to deprive the other spouse of his or her 

proportionate share of marital property. Brosick v. Brosick, 974 S.W.2d 498, 502 

(Ky. App. 1998). The concept of dissipation does not categorically prohibit either 

party from expending marital funds during a period of separation. Obviously, 

separated spouses often must meet ordinary and sometimes extraordinary expenses 

without the benefit of dual incomes. Furthermore, since all property acquired 

during the marriage until the date of the decree is presumed marital pursuant to

KRS2 403.190(3), most expenditures during a period of separation will involve 

marital funds.

Rather, the rule in Brosick merely places such expenditures under 

special scrutiny to ensure that one party is not unfairly deprived of marital assets 

through the other party’s unilateral actions. “Once the party alleging dissipation 

establishes a prima facie case, the burden of proof shifts to the party charged with 

the dissipation to produce evidence sufficient to show that the expenditures were 

appropriate.” Brosick, 974 S.W.2d at 502. If a party is proven to have dissipated 

marital assets, “the court will deem the wrongfully dissipated assets to have been 

received by the offending party prior to the distribution.” Id. at 500.

2 Kentucky Revised Statutes.
-9-

We review the Family Court’s factual findings of dissipation for clear 

error. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Findings 

are not clearly erroneous if they are supported by substantial evidence. Moore v. 

Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence means “evidence 

of substance and relevant consequence having the fitness to induce conviction in 

the minds of reasonable men.” Owens-Corning Fiberglas Corp. v. Golightly, 976 

S.W.2d 409, 414 (Ky. 1998) (citations omitted). It is within the province of the 

Family Court as the fact-finder to determine the credibility of the witnesses and the 

weight given to the evidence. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 

2008).

In this case, both Husband and Wife admitted that they transferred 

marital assets during their separation. Both Husband and Wife spent the funds on 

living expenses and legal fees. In addition, Husband spent some of his funds on 

travel and other personal expenses. The Family Court concluded that Wife’s living 

expenses were marital in nature because she had no other funds to support herself 

and the children. However, the Court also found that their respective legal 

expenses, as well as Husband’s living and personal expenses, were not valid 

marital expenditures. The Court specifically noted that Husband had access to 

other income and assets for these expenses while Wife did not. Thus, the Family 
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Court inferred Husband’s intent to deprive Wife of these assets by the absence of 

an appropriate reason for the expenses.

Husband admitted to non-marital expenditures during the period of 

separation. Those expenditures clearly deprived Wife of marital assets. 

Consequently, Husband had the burden of proving that the expenditures were 

appropriate. Husband argues that he provided sufficient accounting to meet this 

burden. He testified that he paid about $40,000.00 in attorney fees out of the 

investment account. In addition, he provided receipts for $3,290.00 for dates and 

travel. Husband states that he used some funds for living and moving expenses, 

although he does not indicate the amount or source of those expenditures. 

Husband further testified that, at the time he removed the assets from the 

investment account, he did not have access to any additional funds to meet these 

expenses.

It appears from the evidence that Husband spent most of the allegedly 

dissipated funds on his attorney fees. After considering the expenditures and the 

resources of both parties at the relevant times, the Family Court determined that 

Husband failed to prove that the expenses were justified. Although the evidence 

would have supported a different conclusion, we cannot find that the Family Court 

clearly erred by characterizing Husband’s actions as dissipation. 
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III. Maintenance

Husband next raises several issues relating to the Family Court’s 

award of maintenance to Wife. KRS 403.200 provides that a court may grant 

maintenance to either party in a divorce action only if it finds that the party seeking 

maintenance “[l]acks sufficient property, including marital property apportioned to 

him, to provide for his reasonable needs; and . . . [i]s unable to support himself 

through appropriate employment[.]” KRS 403.200(1). Under this statute, a trial

court must first make relevant findings of fact and then determine maintenance 

considering those facts. Perrine v. Christine, 833 S.W.2d 825, 826 (Ky. 1992). 

“In order to reverse the trial court’s decision, a reviewing court must find either 

that the findings of fact are clearly erroneous or that the trial court has abused its 

discretion.” Id. Once the trial court finds that maintenance is appropriate, the 

amount and duration of maintenance is left to the sound discretion of the trial 

court. Gentry v. Gentry, 798 S.W.2d 928, 937 (Ky. 1990).

Husband does not object to the sufficiency of the Family Court’s 

findings that Wife was entitled to permanent maintenance. Rather, he raises 

several issues concerning the amount and duration of the Family Court’s award. 

First, Husband argues that the Family Court abused its discretion by making its 

maintenance award retroactive to the date that Wife filed her motion for temporary 

maintenance. Although KRS 403.160 permits an award of temporary maintenance, 
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the purpose of such an award is to preserve the status quo between the spouses 

while the dissolution proceeding is pending. Horvath v. Horvath, 250 S.W.3d 316, 

318 (Ky. 2008). Consequently, temporary maintenance terminates with the entry 

of the dissolution decree.

In Horvath, the trial court entered an award of temporary maintenance 

in the amount of $1,700.00 per month. Husband consistently made those 

payments. However, he was also in the process of selling his interest in a business. 

Since he anticipated that this interest would be deemed marital, the Husband 

increased his monthly payments to reflect the payments that he was receiving. 

However, the trial court characterized all of these payments as a division of marital 

property rather than maintenance. Consequently, that court concluded that the 

husband still owed $1,700 per month in maintenance arrears from the date of the 

order to the date of judgment. Id. at 317.

On review, this Court disagreed with that trial court’s characterization 

of the amount owed as an arrearage; but concluded that it did not affect the total 

amount that the husband owed. Id. at 317-18. But on discretionary review, our 

Supreme Court reversed. The Court held that the husband was entitled to make his 

temporary maintenance payments from any source, including marital property. Id.

at 318. The Court concluded that the husband clearly satisfied his temporary 

maintenance obligation, and therefore, the trial court erred by characterizing the 
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amounts owed as an arrearage. Id. The Court also observed that the husband was 

genuinely aggrieved by this error because interest accrues on the arrearage as a 

matter of law. Id.

Unlike in Horvath, the Family Court in this case did not enter a 

temporary maintenance order. The Court simply designated its award of 

permanent maintenance to be retroactive to the date that Wife filed her motion for 

temporary maintenance. Consequently, this is not a case where the Family Court 

impermissibly extended the temporary maintenance award beyond the entry of the 

decree. 

We also agree with Wife that Kentucky law permits the Family Court 

to grant a retroactive award of maintenance from the filing of the motion to the 

entry of judgment. Mudd v. Mudd, 903 S.W.2d 533, 534 (Ky. App. 1995). 

However, the maintenance statutes generally contemplate prospective relief. 

Pursley v. Pursley, 144 S.W.3d 820, 828-29 (Ky. 2004). Thus, retroactive relief is 

usually appropriate only when circumstances delay a case from being submitted for 

decision. Mudd, 903 S.W.2d at 534 (citing Ullman v. Ullman, 302 S.W.2d 849, 

850 (Ky. 1957)). 

And as previously noted, the purpose of temporary maintenance is to 

preserve the status quo between the spouses while the dissolution proceeding is 

pending. Horvath, 250 S.W.3d at 318. Thus, Wife’s motion for temporary 
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maintenance involves a distinct inquiry from her request for permanent 

maintenance in the decree. Finally, maintenance payments become vested when 

accrued. Pursley, 144 S.W.3d at 828. Consequently, pre-judgment interest 

accrues on past-due payments on the date when they were due, even when the 

arrearage is retroactively imposed. Id. (citing KRS 360.010).

In this case, the Family Court’s retroactive award imposed a 

maintenance arrearage of $48,000.00 on Husband. The Family Court’s findings do 

not indicate that it considered the effect of that arrearage or the statutory interest on 

its overall division of marital property. In addition, the Family Court did not set 

out any reasons why a retroactive award of permanent maintenance was 

appropriate considering the significant delay between Wife’s filing of her motion 

for temporary maintenance and the entry of the final decree. In the absence of 

such findings, the Family Court abused its discretion by making the retroactive 

award. Therefore, we must remand this matter for additional findings to address 

the reasons for making the award retroactive to the date of Wife’s motion for 

temporary maintenance.

Husband also argues that the Family Court abused its discretion by 

awarding permanent, open-ended maintenance to Wife. But in this matter, the 

Family Court made extensive findings justifying the award. In its order denying 

Husband’s CR 59.05 motion, the Court found that Wife is unable to work full-time 
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due to her obligations as primary caretaker for the children, particularly their 

disabled child. The Court also found that Husband “has not been involved with the 

day-to-day care and medical appointments of the children, so he has been able to 

work full time and excel at his career, earning $218,000.00 for the year 2021.” 

The Court went on to find,

Even though the parties have only been married for nine 

(9) years, the situation with their children is 

extraordinary. It is not a matter of simply allowing 

[Wife] enough time to be able to be in a position to 

provide for herself, but rather the Court must also 

consider her capacity to work while also caring for their 

disabled children. Certainly, if circumstances change 

and/or this becomes no longer the case, the award would 

be modifiable. As such, the Court believes that an openended award of maintenance is appropriate.

Although Husband disagrees with these findings, he has not shown 

that they are clearly erroneous or fail to consider the applicable factors of KRS 

403.200(2). The Family Court also properly noted that its award of maintenance is 

modifiable upon a showing of a substantial change in circumstances. As a result, 

we cannot find that the Family Court’s award of prospective, permanent, openended maintenance constituted an abuse of its discretion. Therefore, we affirm this 

portion of the maintenance award.

IV. Parenting Time

In his final argument on appeal, Husband argues that the Family Court 

abused its discretion by eliminating his overnight parenting time with the children 
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on Wednesday nights. He contends that this reduction granted him less than 

“reasonable” parenting time, as required by KRS 403.320(1). 

KRS 403.320(1) provides that “[a] parent not granted custody of the 

child . . . is entitled to reasonable visitation rights unless the court finds, after a 

hearing, that visitation would endanger seriously the child’s physical, mental, 

moral, or emotional health.” Reasonable visitation is “decided based upon the 

circumstances of each parent and the children, rather than any set formula.” Drury 

v. Drury, 32 S.W.3d 521, 524 (Ky. App. 2000). In determining the best interests of 

the children, a trial court is in the best position to resolve the conflicting evidence. 

Frances, 266 S.W.3d at 758-59. Thus, matters involving visitation are peculiarly 

within the discretion of the trial court. Drury, 32 S.W.3d at 526.

However, this discretion is circumscribed by the provisions of KRS 

403.270(2), which provides, in pertinent part, as follows:

The court shall determine custody in accordance with the 

best interests of the child and equal consideration shall be 

given to each parent and to any de facto custodian. 

Subject to KRS 403.315, there shall be a presumption, 

rebuttable by a preponderance of evidence, that joint 

custody and equally shared parenting time is in the best 

interest of the child. If a deviation from equal parenting 

time is warranted, the court shall construct a parenting 

time schedule which maximizes the time each parent or 

de facto custodian has with the child and is consistent 

with ensuring the child’s welfare.
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The statute goes on to provide a list of factors for the court to consider 

in determining the best interest of the child. If the court determines that a 

deviation from equal parenting time is appropriate, it must set forth a parenting 

time schedule maximizing the time each parent has with the child and “consistent 

with ensuring the child’s welfare.” KRS 403.270(2).

A reduction in a parent’s visitation schedule is considered a restriction 

of that visitation only if the new schedule is not reasonable. See Kulas v. Kulas, 

898 S.W.2d 529, 530 (Ky. App. 1995). Wife never sought to restrict Husband’s 

visitation, only to modify it based upon the needs of the children. Under KRS 

403.320, a trial court has the flexibility to modify visitation under such 

circumstances when it is shown to be in the best interests of the children. 

Pennington v. Marcum, 266 S.W.3d 759, 769-70 (Ky. 2008).

In this case, the Family Court granted Husband parenting-time every 

Wednesday from 5:00 p.m. to 8:00 p.m., every other Thursday from 5:30 p.m. until 

8:30 p.m., and every other weekend from Friday at 5:00 p.m. until Sunday at 10:00 

p.m. The Court also granted him extensive holiday and summer-vacation 

parenting time. Although the Court eliminated overnight visitation on 

Wednesdays, Husband has not shown that this single modification renders the 

schedule as less than reasonable.
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Husband also argues that the Family Court clearly erred in finding 

that overnight weekday visitation would be overly disruptive to the children and 

that he was unable or unwilling to provide the care and equipment that the children 

need for such visitation. He cites to testimony from the children’s therapists, and 

notes that none of them testified that he lacked the knowledge or equipment 

necessary to meet the children’s needs. In reaching a contrary conclusion, the 

Family Court primarily relied on Wife’s testimony regarding her observations of 

the children when they returned from visits with Husband.

In both its initial order and its order denying Husband’s CR 59.05 

motion, the Family Court found that Husband “is unable to meet the children’s 

needs on a regular basis pursuant to Caskey v. Caskey, 328 S.W.3d 220 (Ky. App. 

2010).” However, this conclusion is at odds with the Family Court’s grant of 

alternate weekend, holiday, and summer parenting time. Clearly, he is able to meet 

the children’s needs at those times. 

Moreover, Caskey involved a situation where the child was assaulted 

while in the mother’s care, and the mother was indicted for allowing the child to be 

abused. Id. at 222. There was also extensive evidence of the mother’s neglect of 

the needs of the child. Id. at 222-23. This Court reversed the trial court’s denial of 

the motion to modify custody and visitation, concluding that it amounted to a 

manifest abuse of discretion under the circumstances. Id. at 223-24.
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The circumstances of the current case present a far less dire situation 

than those in Caskey. It only concerns a single overnight, mid-week visitation. 

There are no allegations that the children have been harmed while in Husband’s 

care. Wife concedes that Husband is a suitable person for custody and care of both 

children at other times. Indeed, the Court had no objections to Husband having 

overnight, weekend parenting time, even though the same concerns would appear

to apply. At the very least, the Family Court’s findings that Husband is unable “to 

meet the children’s needs on a regular basis” is overstated.

This leaves us with the Family Court’s conclusion that Husband’s lack 

of knowledge and equipment would make Wednesday-night parenting time “overly 

disruptive” to the children. We would normally defer to the Family Court’s wide 

discretion in scheduling matters. But in this case, the Family Court’s findings are 

not sufficient to determine whether it adequately considered the appropriate factors 

when it eliminated Husband’s Wednesday-night parenting time. Moreover, as 

discussed above, KRS 403.270(2) requires more specific findings when deviating 

from equal parenting time. Consequently, we must reverse this single holding and 

remand for additional factual findings setting out whether mid-week overnight 

parenting time with Husband would be in the best interests of the children.
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V. Cross-Appeal – Attorney Fees

In her cross-appeal, Wife argues that the Family Court abused its 

discretion by setting aside its prior award of $30,000.00 in attorney fees. As an 

initial matter, we note that the Family Court previously awarded attorney fees 

directly to Wife’s former counsel, Louis Waterman (Waterman). However, 

Waterman is not a party to this appeal. Under the rule set forth in Neidlinger v. 

Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001), overruled on other grounds by Smith 

v. McGill, 556 S.W.3d 552 (Ky. 2018), the attorney would be an indispensable 

party to Wife’s appeal from the Family Court’s order setting aside the award of 

attorney fees to him. 

But recently, the Kentucky Supreme Court noted that this rule has 

been altered by the adoption of the Kentucky Rules of Appellate Procedure (RAP). 

Mahl v. Mahl, ___ S.W.3d ___, 2023 WL 3113308 (Ky. Apr. 27, 2023) (finality 

endorsement granted May 18, 2023). Based on RAP 2(A)(2) and 10(B), strict 

compliance for naming an indispensable party is no longer required. Mahl, 2023 

WL 3113308, at *8. Although it is not clear how these new rules affect the relief 

available on appeal, we conclude that Wife is entitled to challenge the denial of her 

attorney fees even though Waterman is not a party to this appeal.

KRS 403.220 authorizes a trial court to order a party to pay a 

“reasonable amount” of the other party’s attorney fees after considering the 
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financial resources of the parties. In Smith v. McGill, 556 S.W.3d 552 (Ky. 2018), 

the Kentucky Supreme Court overruled prior case law requiring that there be a 

disparity in the financial resources of the parties in favor of the payor. Id. at 556. 

“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.” Id. Other factors the trial court 

should consider include the following:

(a) Amount and character of services rendered. (b) 

Labor, time, and trouble involved. (c) Nature and 

importance of the litigation or business in which the 

services were rendered. (d) Responsibility imposed. (e) 

The amount of money or the value of property affected 

by the controversy, or involved in the employment. (f) 

Skill and experience called for in the performance of the 

services. (g) The professional character and standing of 

the attorneys. (h) The results secured.

Rumpel v. Rumpel, 438 S.W.3d 354, 363 (Ky. 2014) (quoting Sexton v. Sexton, 125 

S.W.3d 258, 272-73 (Ky. 2004)). 

Following the bench trial, Wife’s current counsel, Louis P. Winner

(Winner), filed an affidavit setting that she had incurred $74,429.67 in attorney 

fees through representation by his firm, and $101,622.92 in attorney fees through 

representation by Waterman’s firm. Based on this affidavit, Wife’s combined 

attorney fees are $176,052.59. The affidavit also stated that Wife still had an 
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outstanding balance of $44,583.00 owed to Waterman. On the other hand, Wife’s 

tendered factual findings set out attorney fees of $71,025.17 to Winner’s law firm 

and $57,039.00 to Waterman’s firm, which should result in attorney fees totaling 

$128,064.17.

In its initial findings, the Family Court found that Husband had 

incurred attorney fees and costs totaling $73,923.25, while Wife had incurred 

attorney fees and costs totaling $172,647.00.3 The Court also found that Wife had 

outstanding attorney fees owed to Waterman in the amount of $44,583.00. The 

Family Court considered Husband’s substantially greater wealth and resources. 

But the Court also pointed out that Wife had incurred more than twice the attorney 

fees and costs than Husband. Based upon these significant disparities, the Family 

Court directed Husband to pay $30,000.00 of Wife’s fees to her attorney.

In his petition for rehearing, Husband noted that neither Winner nor 

Waterman provided detailed billing records. Consequently, Husband argued that 

Winner’s affidavit lacked sufficient detail to determine whether Wife’s fees were 

reasonable. He also argued that the Family Court failed to make sufficient findings 

under the factors set out in Sexton. Husband also pointed out that Wife had used 

3 This total is not consistent with the amounts set forth either in Winner’s affidavit or in the 

tendered findings, and the Family Court did not state how it arrived at this figure. While neither 

party has challenged the factual finding, this disparity is moot in light of our conclusion below 

that this matter requires additional factual findings.
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marital funds to pay her attorney fees while the matter was pending. In addition, 

he asserted that Wife’s prosecution of the dissolution matter often had been 

vindictive. Finally, Husband asserted that Wife testified that she was contesting 

the majority of her fees to Waterman, and “she did not expect to pay them.” 

However, Husband’s motion did not include a citation to the record for this 

assertion. As noted above, the Family Court relied on this latter ground in setting 

aside its award of $30,000.00.

Wife argues that there was no evidence in the record to support this 

assertion that she was contesting the attorney fees owed to prior counsel. We 

agree. Neither the parties nor the Family Court cite to any evidence or testimony 

supporting this claim. Likewise, there is no evidence that Wife did not incur 

attorney fees to Waterman or the amount of any fees are in dispute. And even if 

Wife may challenge the total amount of attorney fees that she owes to Waterman, 

Husband lacks standing to assert that potential dispute as a basis to avoid the 

imposition of attorney fees. Under the circumstances, we must conclude that the 

Family Court abused its discretion by setting aside the award of attorney fees on 

this basis.

In his reply brief, Husband argues that this Court should affirm the 

Family Court’s order setting aside the award of attorney fees due to the absence of 

any findings that Wife’s fees were reasonable. “Where the prevailing party seeks 
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only to have the judgment affirmed, it is entitled to argue without filing a crossappeal that the trial court reached the correct result for the reasons it expressed and 

for any other reasons appropriately brought to its attention.” Commonwealth, 

Corrections Cabinet v. Vester, 956 S.W.2d 204, 205-06 (Ky. 1997). As noted 

above, Husband brought this matter to the attention of the Family Court when he 

filed his CR 59.05 motion. He also requested more specific findings pursuant to 

CR 52.02. Finally, as the prevailing party on this issue below, Husband could not 

have raised this issue in his direct appeal. Therefore, we conclude that he is 

entitled to raise this issue in response to Wife’s cross-appeal from the Family 

Court’s order setting aside the award of attorney fees.

It is well-established that any award of attorney fees is subject to a 

determination of reasonableness by the Trial Court. Capitol Cadillac Olds, Inc. v. 

Roberts, 813 S.W.2d 287, 293 (Ky. 1991). Our domestic-relations statutes and 

case law have never required the same level of documentation as required for other 

awards of attorney fees. But at a minimum, the Family Court must establish a 

“lodestar” figure, consisting of the counsel’s reasonable hours, multiplied by a 

reasonable hourly rate. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 

826 (Ky. 1992). Once that determination is made, the Family Court must 

determine the reasonableness of those fees using the Sexton factors. 
-25-

In this case, Winner’s affidavit only provided his own hourly rate but 

did not indicate the number of hours that he expended while representing Wife. 

Moreover, there was no evidence of the hourly rate or hours billed by Waterman –

only the total amount billed by his firm. In the absence of such evidence, the 

Family Court had no basis to calculate a lodestar figure. Furthermore, the Family 

Court made no findings under the Sexton factors that the fees charged were 

reasonable.

The Family Court has wide discretion to award attorney fees under 

KRS 403.220. Smith, 556 S.W.3d at 556. But without adequate proof or findings, 

this Court cannot afford meaningful appellate review of any award. Under the 

circumstances, we must remand this matter for an additional hearing and findings 

on the amount and reasonableness of the claimed attorney fees.

VI. Conclusion

Accordingly, in Appeal No. 2022-CA-0433-MR, we affirm the orders 

of the Jefferson Family Court with respect to its rulings on dissipation of marital 

assets and the award of prospective maintenance. We reverse those orders with 

respect to the Family Court’s rulings on retroactive maintenance and the parenting 

time schedule. We remand those matters to the Jefferson Family Court for 

additional findings and entry of a new judgment as set forth in this Opinion.
-26-

In Appeal No. 2023-CA-0180-MR, we reverse the order of the 

Jefferson Family Court denying Wife’s motion for attorney fees, and we remand 

that matter to the Family Court for an additional hearing and findings as set forth in 

this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT/CROSSAPPELLEE:

Melanie Straw-Boone

Michele L. McKinney

Louisville, Kentucky

BRIEFS FOR APPELLEE/CROSSAPPELLANT:

Louis P. Winner

Sidney M. Vieck

Louisville, Kentucky