{
  "id": 6649318,
  "name": "Amal OLAIMEY v. Nancy (Olaimey) TURK",
  "name_abbreviation": "Olaimey v. Turk",
  "decision_date": "1990-12-12",
  "docket_number": "CA 89-502",
  "first_page": "28",
  "last_page": "31",
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      "cite": "33 Ark. App. 28"
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      "cite": "799 S.W.2d 572"
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    "name_abbreviation": "Ark. Ct. App.",
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      "year": 1989,
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      "category": "reporters:state",
      "reporter": "Ark.",
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      "cite": "31 Ark. App. 1",
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      "reporter": "Ark. App.",
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      "year": 1990,
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  "last_updated": "2023-07-14T21:06:58.749715+00:00",
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    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Mayfield, J., dissents.",
      "Jennings, J., not participating."
    ],
    "parties": [
      "Amal OLAIMEY v. Nancy (Olaimey) TURK"
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nIn this case, a panel of this court affirmed the ruling of the chancellor granting appellee\u2019s petition for arrear-ages in child support. Appellee has submitted a motion requesting attorney\u2019s fees and costs incurred on appeal. Appellant has responded agreeing to an award of costs, but denying appellee\u2019s entitlement to attorney\u2019s fees.\nIn Elkins v. Coulson, 293 Ark. 539, 739 S.W.2d 675 (1987), the supreme court had before it a petition for a writ of prohibition contesting our authority to award attorneys\u2019 fees on appeal. The court ultimately denied the writ and dismissed the petition on procedural grounds, but in doing so, the court stated that \u201c[t]he court of appeals clearly has jurisdiction and authority to award attorneys\u2019 fees in divorce cases.\u201d The court mentioned, however, in a footnote, citing the case of Floyd v. Isbell, 211 Ark. 631, 201 S.W.2d 755 (1947) that it may have been error to have awarded fees in that instance. In Floyd v. Isbell, the supreme court disallowed fees on appeal because the underlying action was to set aside a decree, and that type of action was not covered by the statute authorizing the recovery of attorneys\u2019 fees, which is now codified at Ark Code Ann. \u00a7 9-12-309(b) (Supp. 1989). Similarly, Elkins, supra, was an action to set aside a decree.\nThe clear implication from the above-cited authorities is that attorneys\u2019 fees are recoverable on appeal in domestic relations actions for \u201cthe enforcement of alimony, maintenance and support,\u201d as governed by the statute. Since the instant case involves the enforcement of child support, we do have the authority to award attorneys\u2019 fees on appeal.\nThe question remains, however, as to whether we should award fees in this case, and if so, what amount. In her motion, appellee states that 10.25 hours were spent preparing the appeal at $100 an hour for a total of $1,025, exclusive of costs named at $172.40.\nJudging by the issues raised and the brief submitted, this is a reasonable request. In this case appellee was compelled to hire an attorney to enforce her legal rights granted under court order. Even though fees were allowed below, this is no reason to deny fees on appeal. It is rare that the fees awarded by the court adequately compensate the parties for the actual fees incurred. Appeals necessarily require additional time and the costs associated with appeals are rapidly increasing. It would be harsh not to compensate a party for defending a court order on appeal, simply because they recovered attorney\u2019s fees at the trial level.\nWe have seen a metamorphosis in our society\u2019s attitude toward fees. We have shifted the burden of some costs to the wrongdoer or to those who prosecute frivolous actions. We are aware of the ever increasing specialized knowledge needed to become an attorney and to sharpen these skills, as well as the increased cost of private practice. It is surely harsh and unrealistic to deny those persons who perhaps may be the least able to afford fees, i.e. those who attempt to collect arrearages in child support, additional funds on appeal. Far from having a chilling effect on litigation, it may prompt non-custodial parents to voluntarily or more willingly pay sums required under court order.\nTherefore, we grant appellee\u2019s motion for attorney\u2019s fees in the amount of $1,025 with costs of $172.40.\nMayfield, J., dissents.\nJennings, J., not participating.",
        "type": "majority",
        "author": "Per Curiam."
      },
      {
        "text": "Melvin Mayfield, Judge,\ndissenting. The majority of the court has today ordered the appellant to pay appellee the sum of $1,025.00 for the services rendered by her attorney in the appeal of this case. I dissent for two reasons.\nFirst, I dissent because appellee\u2019s motion contains no statement of authority in support of her request for attorney\u2019s fee, and makes no attempt to state any reason why the request should be granted. In Bailey v. Montgomery, 31 Ark. App. 1, 786 S.W.2d 594 (1990), this court stated: \u201cAs a general rule, attorney\u2019s fees are not allowed in Arkansas unless expressly authorized by statute.\u201d We cited the Arkansas Supreme Court opinion of Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988), in support of that statement. Thus, I would deny appellee\u2019s motion because it simply fails to show any reason or authority for us to grant it.\nIn the second place, even if we were required or desired to determine on our own whether there is reason and authority to grant the motion, I would not do so under the facts and law.\nThis was an appeal from the trial court\u2019s holding that appellant could not reduce the child support payable to appellee when one of the children started living with him instead of the appellee. While it is true that Ark. Code Ann. \u00a7 9-12-309(b) (Supp. 1989) provides that an attorney\u2019s fee may be allowed to either party for the enforcement of child support provided in a divorce decree, I would not allow a fee to the appellee for the services for her attorney in this court under the circumstances of this case. She has already been allowed a fee of $1,000.00 by the trial court and has been allowed court cost for the physical preparation of the brief filed by her in this court, and, in my opinion, the basis of the appellant\u2019s appeal clearly demonstrates that in fairness and equity any additional attorney\u2019s fee due appellee\u2019s attorney for this appeal should be paid by her.",
        "type": "dissent",
        "author": "Melvin Mayfield, Judge,"
      }
    ],
    "attorneys": [
      "Bramlett & Pratt, by: Eugene D. Bramlett, for appellant.",
      "Friday, Eldredge & Clark, by: Barry E. Coplin, for appellee."
    ],
    "corrections": "",
    "head_matter": "Amal OLAIMEY v. Nancy (Olaimey) TURK\nCA 89-502\n799 S.W.2d 572\nCourt of Appeals of Arkansas En Banc\nOpinion delivered December 12, 1990\nBramlett & Pratt, by: Eugene D. Bramlett, for appellant.\nFriday, Eldredge & Clark, by: Barry E. Coplin, for appellee."
  },
  "file_name": "0028-01",
  "first_page_order": 50,
  "last_page_order": 53
}