Appeal from Fayette Circuit Court. (DR-93-008). William H. Baldwin, TRIAL JUDGE.
Released for Publication December 7, 1994.
Wright, Retired Appellate Judge. Robertson, P.j., and Yates, J., concur. Thigpen, J., Dissents.
The opinion of the court was delivered by: Wright
WRIGHT, Retired Appellate Judge
Carolyn Junkin filed an action for divorce against Clatus Junkin in January 1993. The husband answered and counterclaimed. On June 14, 1993, after hours of negotiations, the parties, through counsel, recited into the record a settlement agreement. The agreement disposed of all financial issues, including the payment of the wife's attorney fees and costs. The parties agreed that the only issues remaining to be tried were custody, visitation, and tax deductions for the care of the children.
Testimony was taken on the remaining issues on June 15, 1993. Following the hearing, the trial court requested that the parties submit their agreement. On October 15, 1993, counsel for the parties submitted the proposed agreement. On October 23, 1993, the trial court entered the judgment of divorce. The trial court did not adopt the parties' agreement concerning the payment of the wife's attorney fees and costs. Rather, it made the parties responsible for their own fees and costs. The wife filed a motion for a new trial, requesting that the provision of the agreement concerning attorney fees and costs be reinstated. The trial court declined to rule on the matter, and it was effectively denied by inaction. The wife filed a timely notice of appeal.
The wife asserts that the trial court erred in refusing to adopt and incorporate the parties' agreement as it pertained to the payment of her attorney fees, accountant's fees, and costs.
The overall agreement reached by the parties was rather complex due to tax consequences. The central and novel provision of the agreement was the creation of a "marital assets properties" partnership (MAP). Substantially, all the marital assets, along with the extensive debts, were to be put in trust. Although the husband would essentially continue to maintain control over the operations of the assets in the partnership, the wife would have a one-third ownership of all the properties and all the debts included. The husband would have a two-thirds ownership.
The provision of the agreement concerning attorney fees, as recited into the record by the husband's attorney, was as follows:
"The last item that I have on mine we have agreed to handle the attorney's fees for the wife and the accountants' fees for both parties in this divorce proceeding as follows.
"When we have completed the paperwork, Mr. Knowles [wife's attorney] and I will attempt to agree on what is a reasonable figure for his attorney's fee. If we are unable to do so, he will submit to the court an affidavit concerning his services and his claims of fees. We will on behalf of the husband within ten days from the date of his filing submit a counter affidavit or affidavit that we feel to be appropriate, and the court can determine the amount of that fee. Mr. Humber's bill for accounting services will be submitted, and I guess the right to contest it would be as it is in any other case, and we will resolve it at the time and the same thing with Mr. Hocutt's bill. All of these bills though will be deemed to be expenses of this marital partnership and to be paid out of those businesses."
The wife's attorney added:
"Perhaps we should explain that without going into detail. The reason we are doing all this is the reality is at this point and time because of investments in the businesses there really is no other place for the money to come from without getting another loan. We don't want to do that."
The trial court disregarded the parties' agreement concerning attorney fees and costs and ...