Olaimey v. Turk

Melvin Mayfield, Judge,

dissenting. 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.

First, I dissent because appellee’s motion contains no statement of authority in support of her request for attorney’s 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: “As a general rule, attorney’s fees are not allowed in Arkansas unless expressly authorized by statute.” 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’s motion because it simply fails to show any reason or authority for us to grant it.

In 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.

This was an appeal from the trial court’s 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. § 9-12-309(b) (Supp. 1989) provides that an attorney’s 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’s appeal clearly demonstrates that in fairness and equity any additional attorney’s fee due appellee’s attorney for this appeal should be paid by her.