Louanne Mahl v. Charles F. Mahl

RENDERED: APRIL 27, 2023
TO BE PUBLISHED

Supreme Court of Kentucky
2021-SC-0481-DG

CHARLES F. MAHL APPELLANT

ON REVIEW FROM COURT OF APPEALS
V. NO. 2019-CA-0874
JEFFERSON CIRCUIT COURT NO. 05-CI-500770

LOUANNE MAHL APPELLEE

AND

2021-SC-0487-DG

LOUANNE MAHL APPELLANT

ON REVIEW FROM COURT OF APPEALS
V. NO. 2019-CA-0874
JEFFERSON CIRCUIT COURT NO. 05-CI-500770

CHARLES F. MAHL APPELLEE

OPINION OF THE COURT BY JUSTICE BISIG

REVERSING AND REINSTATING

After twenty-eight years of marriage and two children, Dr. Charles and

Louanne Mahl were divorced in 2007. The circuit court ordered Charles to pay

maintenance for ten years, and once that order expired Louanne sought

modification. The circuit court held multiple hearings and ultimately modified
maintenance and awarded attorney’s fees to Louanne’s attorney. Charles

appealed but failed to name Louanne’s attorney as a party in the notice of

appeal. Louanne filed a cross-appeal, arguing that Charles’s appeal should be

dismissed for failure to name an indispensable party. The Court of Appeals

declined to address the attorney’s fee issue but reversed the circuit court’s

modification of maintenance. Both parties sought discretionary review in this

Court. Having granted discretionary review and carefully reviewed the record,

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

FACTS AND PROCEDURAL HISTORY

Dr. Charles Mahl (Charles) and Louanne Mahl (Louanne) were married

on May 28, 1978 and are the parents of two adult children. Charles and

Louanne remained married for twenty-eight years. When the parties married,

Charles was in his medical residency program and Louanne was a surgical

nurse. Charles started a successful ophthalmology practice in 1982, which

grew to twenty-one offices and fifty employees, earning between five and seven

million dollars a year at its peak. Louanne worked in Charles’s practice as a

surgical nurse and office manager, playing a significant role in establishing and

operating the practice.

In 1999, Charles became disabled and began receiving $28,360 monthly

in disability income. His disability stemmed from back problems, which

progressively worsened over the years and eventually led to nerve problems in

his leg. At that time, Louanne was unemployed and suffered from back and

neck pain related to a broken vertebra sustained in a horseback riding accident

2
in 1999. Her condition was worsened by an automobile accident in 2006.

Louanne testified that she did not plan on returning to work and did not

believe she could do so.

Louanne filed a petition for dissolution of marriage on March 2, 2005.

After a two-day hearing, the circuit court entered a judgment on August 1,

2007 that divided the marital property approximately equally with each party

receiving about $4.5 million in assets. Notably, the circuit court ordered that

Louanne receive $764,117 from Charles’s IRA trust and $59,368 from the

parties’ joint West End Financial account (collectively the $800,000 judgment).

Louanne also received $1,677,749 in proceeds from the sale of their marital

residence. In addition, the circuit court awarded Louanne maintenance of

$6,000 per month until Charles reached sixty-five years of age in 2017 or upon

her death, remarriage, or cohabitation.

Charles appealed and argued, among other things, that the circuit court

erred by awarding Louanne permanent maintenance because it failed to make

a factual finding under Kentucky Revised Statute (KRS) 403.200(1) that

Louanne lacked sufficient property to provide for her reasonable needs.

Louanne filed a cross-appeal, raising various issues about the circuit court’s

division of property and valuation of marital assets. She also argued that the

circuit court erred in ordering that maintenance cease when Charles turned

sixty-five. The Court of Appeals affirmed the maintenance award, noting that

the circuit court’s findings were supported by substantial evidence. Mahl v.

Mahl, No. 2007-CA-2160-MR & No. 2007-CA-2344-MR, 2009 WL 1884375 (Ky.

3
App. July 2, 2009). Specifically, the Court of Appeals relied on Louanne’s back

and neck condition, ADHD, depression, prescription medication use and limits

on daily activity in upholding the maintenance award.

In early 2009, while the appeal to the Court of Appeals was pending, the

parties received notification that their West End Financial accounts had been

frozen. The parties held funds at West End Financial that were managed by

the parties’ mutual friend, William Landberg. Unfortunately, Landberg lost the

entirety of the funds entrusted to him in a Ponzi scheme.1 Neither party was

aware they had been defrauded until they began implementing the mandates of

the circuit court’s orders. As such, both parties lost a significant amount of

money, including the $800,000 in funds awarded to Louanne in the divorce

decree. Additionally, Louanne lost $1.38 million that she separately and

individually invested with Landberg. At the time the Ponzi scheme was

discovered, the accounts were frozen. Despite these losses, Charles continued

paying Louanne $6,000 per month in maintenance, for a total of $720,000,

until he turned sixty-five as required by the circuit court.

In December 2016, Louanne filed a motion to modify maintenance,

alleging changed circumstances. She asserted that the changed circumstances

1 A Ponzi scheme is defined by BLACK’S LAW DICTIONARY (11th ed. 2019) as
follows:
A fraudulent investment scheme in which money contributed by
later investors generates artificially high dividends or returns for the
original investors, whose example attracts even larger investments. •
Money from the new investors is used directly to repay or pay interest to
earlier investors, usu[ally] without any operation or revenue-producing
activity other than the continual raising of new funds.
4
included (1) Charles having returned to an active and robust medical practice

despite being disabled at the time of the 2007 divorce decree; (2) her not having

received the $800,000 judgment; and (3) her loss of her own sums in the Ponzi

scheme. Louanne testified that she has earned no income since the divorce

decree, other than approximately $46,700 from the sale of one of the properties

she was awarded. She also stated that she is unable to work due to her

disability.

After numerous hearings, the circuit court issued an order in June 2018

determining that substantial and continuing change in circumstances

occurred, which rendered the original maintenance award unconscionable. As

justification for modification, the circuit court recognized that Louanne did not

receive the $800,000 judgment nor expected interest income from these funds.2

At the time of the hearing, neither party had received any of the lost funds from

the West End Financial accounts and had pursued legal action against West

End Financial to no avail.

Notably, the circuit court indicated that certified financial records

demonstrated that Charles withdrew a total of $1,062,272 from various

accounts in violation of an April 6, 2005 status quo order in which the circuit

court directed that “[n]either party shall make any changes to his or her assets

2 When the circuit court originally awarded maintenance in 2007, it relied on
Diane Medley, an accountant, who was jointly retained as an expert by both parties.
Medley provided an opinion as to Louanne’s ability to earn income from the
investment of her assets and the various tax consequences of different investment and
maintenance scenarios. Medley testified that Louanne could expect a reasonable rate
of return of 9.81% on her investments.

5
or estate plans which in any way places such assets beyond the reach of the

Court.” These funds included $702,272 from his IRA trust account, $75,000

from a joint account he shared with Louanne and $285,000 from his individual

trust account. Charles stated that he did not pay Louanne any of that money

and disputed the authenticity of the certified records. Charles emphasized that

Louanne received account statements from West End Financial until 2009 and

waited nearly ten years to allege he improperly withdrew funds. The lapse in

time made it impossible to know what transactions occurred or who was

responsible for the withdrawals.

Ultimately, on March 28, 2019, the circuit court ordered Charles to pay

Louanne $8,688 per month in maintenance until her remarriage, cohabitation,

or death, or until she collects the $800,000 judgment as originally awarded to

her in the 2007 divorce decree, whichever comes first. The circuit court

ordered that the 2007 judgment is subject to statutory interest, pursuant to

KRS 360.040. In addition, the circuit court ordered Charles to pay $45,619.60

in Louanne’s attorney’s fees to Jonathan Breitenstein. The circuit court

specifically stated that the attorney fee was payable to Mr. Breitenstein who

could enforce the judgment in his own name.

Charles filed a notice of appeal on May 30, 2019, raising five issues.

Relevant to this appeal, Charles argued that the circuit court abused its

discretion in modifying the maintenance award and ordering attorney’s fees.

Notably, Charles did not name Breitenstein as a party in the notice of appeal or

in the prehearing statement in the Court of appeals. In response, Louanne

6
filed a motion to dismiss the entire appeal pursuant to Fink v. Fink, 519 S.W.3d

384 (Ky. App. 2016), wherein the Court of Appeals dismissed an appeal prior to

briefing based on the appellant’s failure to name an attorney as an appellee in

an appeal that challenged an attorney’s fee award. The Court of Appeals

denied Louanne’s motion to dismiss, but in a June 30, 2020 order stated that

“while dismissal is not merited, the Court holds that Appellant’s claim

regarding attorney fees fails for want of jurisdiction.”

In its August 6, 2021 opinion, the Court of Appeals concluded that the

circuit court abused its discretion in granting Louanne’s motion to modify

maintenance rather than allowing the maintenance award of $6,000 per month

to terminate in 2017 in accordance with the 2007 divorce decree. Specifically,

the Court of Appeals disagreed with the circuit court’s determination that the

changes in circumstances rendered the original maintenance award

unconscionable. The Court of Appeals emphasized that both parties suffered

losses since the divorce decree and noted that Louanne could have achieved

financial stability with proper management of the assets and maintenance

payments she received.

Charles and Louanne both filed motions for discretionary review in this

Court. Having granted both motions for discretionary review, heard oral

arguments, and carefully considered the record, we reverse the Court of

Appeals’ decision and remand to the circuit court for reinstatement of the order

modifying maintenance.

7
 ANALYSIS

The issues raised in both appeals are (1) whether the circuit court erred

in modifying the original maintenance award; (2) whether the failure to name

an attorney with an enforceable attorney’s fee award is fatal to an appeal; and

(3) whether the attorney’s fee award was proper. We address each issue in

turn.

I. The Court of Appeals erred in reversing the circuit court’s
modification of maintenance.

Louanne argues that the Court of Appeals erred in reversing the circuit

court’s modification of maintenance. The statute that allows modification of

maintenance awards, KRS 403.250, states that “the provisions of any decree

respecting maintenance may be modified only upon a showing of changed

circumstances so substantial and continuing as to make the terms

unconscionable.” (Emphasis added). “Unconscionable” means “manifestly

unfair or inequitable.” Shraberg v. Shraberg, 939 S.W.2d 330, 333 (Ky. 1997)

(quoting Wilhoit v. Wilhoit, 506 S.W.2d 511 (Ky. 1974)). The parties’

circumstances at the time of the decree and creation of the maintenance

obligation are “the status quo against which the changed circumstances

requirement of KRS 403.250(1) is to be measured.” Rayborn v. Rayborn, 185

S.W.3d 641, 644 (Ky. 2006). We review a circuit court’s decision on modifying

maintenance for an abuse of discretion, Woodson v. Woodson, 338 S.W.3d 261,

262-63 (Ky. 2011), reversing a circuit court only where its decision is

“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
8
 The circuit court considered Woodson, which interpreted KRS 403.250

and its explicit standard of only allowing modification “upon a showing of

changed circumstances so substantial and continuing as to make the terms

unconscionable.” The Woodson Court reasoned that while KRS 403.250 sets a

strict standard to protect the finality of judgments, the statute “does not divest

trial judges of the discretion to decide when modification outweighs the virtue

of finality in seeking fairness and equity in what many times may be dire

consequences and complicated options.” 338 S.W.3d at 263. The circuit court

concluded that because Louanne did not receive the $800,000 judgment, or the

estimated 9.81% of interest she would have earned on that money, there were

“multiple substantial and continuing changes in financial circumstances.”

Further, despite being disabled at the time of the divorce, Charles established a

new medical practice in the years thereafter.

Pursuant to Block v. Block, 252 S.W.3d 156, 160 (Ky. App. 2007), the

circuit court emphasized that the parties’ circumstances at the time of the

decree compared to their circumstances at the time of the hearing were

significantly different. At the time of the decree, the parties were on equal

financial footing but at the time of the hearing they were not, which constitutes

a substantial change rendering the original maintenance award

unconscionable.

The circuit court conducted four hearings in late 2018 and early 2019

and the parties presented copious information about their finances and

circumstances. Louanne testified that she cannot work in the nursing field

9
due to her disability and has no income. In fact, she has not earned significant

income in decades, receives food stamps, and has been selling stock to pay her

living expenses of approximately $4,663.94 per month, which she classified as

“the bare minimum,” as of January 2019.3 At the hearing, Louanne was sixty-

five years old and although she became eligible for social security benefits at

age sixty-three, she chose to delay receipt of social security to maximize her

benefits. Her financial assets included the condominium she resides in, valued

at $379,000, and approximately $6,000 in stock.

Charles received disability payments until October 2017. He testified

about the two businesses he is involved in, although he claimed his current

wife is the sole owner of one of those businesses. He listed his income from

those two businesses as $200 per month and provided evasive and ambiguous

answers about how funds from those businesses are handled or how much

money the two businesses generated. The circuit court concluded that it “was

not provided adequate information to discern the entirety of [Charles’s] income

or assets.” The circuit court stated, based on Charles’s explanation of

payments he makes, that his monthly expenses totaled approximately $16,928

per month. In discussing Charles’s assets, the circuit court stated

[u]ltimately, [Charles] is asking this Court to believe that he has
$16,928 in monthly expenses, including a payment of $96,000 per

3 In her mandatory case disclosure filed February 8, 2017, Louanne listed her
monthly expenses as $8,166.27. At that time, she was still receiving maintenance
from Charles in the amount of $6,000 per month. At the April 2018 hearing, she
testified that her monthly expenses were $5,911.16. Louanne also explained that she
has many house repairs, dental work, and medical procedures that she has not
completed as she cannot afford them. With those costs included, Louanne argued her
monthly expenses are $12,000 per month.
10
 year for household expenses, runs expenses such as $17,097.95 in
meals, his Maserati payment, Turks and Caicos vacations, etc.
through his business, but earns $200.00 per month. That is
fictitious, at best.

Despite his questionable testimony, the circuit court concluded that Charles

has financial stability. The circuit court underscored the fact that Louanne

has no income. Further, the circuit court emphasized that in 2007, the prior

circuit court judge had no reasonable expectation that Louanne would return

to work and that her circumstances had not changed. In fact, Louanne is even

farther removed from the workforce and is not in a position to find gainful

employment. Notably, the parties were married for twenty-eight years and

share two children.

The circuit court also considered the expert testimony of Douglas

Weaver, a retired IRS Estate Tax Examiner. Weaver analyzed Charles’s 2014-

2017 personal tax returns, business returns, and his mandatory case

disclosure. Weaver testified that there were assets listed on tax returns that

were not listed in Charles’s mandatory case disclosure, such as a $1.3 million

note to “Charles F. Mahl M.D. P.A.” He also estimated that Charles has an

unreported “cash hoard” of at least $538,411. As to his business tax return,

he inferred that Charles was likely overreporting losses and underreporting

income. Charles objected to the admissibility of Weaver’s testimony on several

grounds, but the circuit court overruled the objection. The circuit court also

noted that Charles was ordered to turn over complete financials and that he

repeatedly refused to submit or submitted insufficient response to financial

discovery throughout the case, despite the circuit court’s warning that his
11
discovery refusals could prohibit him from asserting a defense regarding his

inability to pay maintenance.4

Ultimately the circuit court concluded that “[a]t the time of the Decree,

the parties were on equal financial footing. Now, they are certainly not. That is

manifestly unfair.” Charles spent a great deal of time arguing that the West

End Financial losses were not his fault because he was also a victim of the

Ponzi scheme. The circuit court reasoned that fault is irrelevant because the

modification statute does not contemplate fault. The circuit court posited that

if fault were considered, it needed to look no further than Charles’s violation of

the status quo order by unilaterally moving the bulk of his assets while the

divorce was pending.

The Court of Appeals acknowledged a change in circumstances but

concluded that the changes did not render the original maintenance award

unconscionable. The appellate court emphasized that Charles, like Louanne,

lost significant sums of money in the Ponzi scheme. Also, Louanne received

approximately $720,000 in maintenance payments from Charles and at least

$1 million in marital assets. Louanne’s lack of financial stability at the time of

the modification proceeding was largely attributable to a combination of bad

luck and mismanagement of the assets she received in the divorce proceeding.

4 For example, Louanne determined, through Charles’s submitted discovery,
that Charles maintained at least seven checking accounts. However, Charles only
disclosed three of those accounts in his mandatory case disclosure. The circuit court
also stated that Charles failed to provide sufficient business records for his two
companies and did not submit his social security documentation.

12
The Court of Appeals also noted that it is manifestly unfair to essentially

require Charles to continue working past traditional retirement age to pay

Louanne maintenance.

We agree with the circuit court that modification was warranted. An

appellate court is not authorized to substitute its judgment for that of the

circuit court where the circuit court’s decision is supported by substantial

evidence. Combs v. Combs, 787 S.W.2d 260, 262 (Ky. 1990). This case has a

protracted history that began with Louanne filing the divorce petition in 2005.

The parties were consistently before the circuit court from December 2016 until

the orders modifying maintenance were entered in mid-2018. The circuit court

held hearings, considered pleadings, and ultimately issued its last opinion in

this matter, which set the maintenance modification amount, prior to this

appeal in March 2019.

Specifically, the circuit court conducted five hearings regarding the

modification of maintenance and other issues. While a different judge

originally entered the divorce decree, the circuit court judge assigned to

consider Louanne’s motion to modify maintenance managed this case, these

parties, and these issues for over three years. The circuit court was

undoubtedly in the best position to listen to the testimony, review hundreds of

pages of evidence, and assess the credibility of the witnesses who testified.

“The fact that a reviewing judge might have decided the issue differently had

he/she occupied the trial bench is not a sufficient basis for concluding that the

13
trial court abused its discretion.” Perrine v. Christine, 833 S.W.2d 825, 827

(Ky. 1992).

Louanne, a party to a twenty-eight-year marriage, did not receive the

considerable sum of money awarded to her in the original divorce decree. She

also did not receive any of the interest she could have earned on those sums.

Charles’s circumstances also changed in that, at the time of the decree, he was

not expected to earn money above his disability payments. At the time of

modification, he not only returned to medical practice but opened a successful

clinic in Florida. These changes in circumstances are manifestly unfair. “The

burden of proof to change maintenance orders is sufficiently strict to insure

relative stability and finality.” Woodson, 338 S.W.3d at 263. While this Court

has acknowledged a compelling need for finality in divorce cases, it bears

repeating that “the statute does not divest trial judges of the discretion to

decide when modification outweighs the virtue of finality in seeking fairness

and equity in what many times may be dire consequences and complicated

options.” Id. We conclude that the Court of Appeals erred by reversing the

circuit court. The circuit court’s judgment should be affirmed.

II. Charles’s failure to name Louanne’s attorney as a party to the
appeal was not a fatal error.

In modifying the maintenance award, the circuit court also ordered

Charles to pay $45,619.60 in Louanne’s attorney’s fees to Jonathan

Breitenstein. The circuit court order specifically stated that the attorney fee

was payable to Mr. Breitenstein who could enforce the judgment in his own

name. In the notice of appeal to the Court of Appeals, Charles failed to name
14
Breitenstein as a party. Louanne argues that Charles’s appeal must be

dismissed because Charles failed to name an indispensable party. Charles

argues that attorneys are not necessary parties to appeals raising fee issues

and that dismissing an action for failure to name an attorney as a party is

draconian.

Whether a party is indispensable is determined by considering whether

the party’s “‘absence prevents the Court from granting complete relief among

those already parties.’” Browning v. Preece, 392 S.W.3d 388, 391 (Ky. 2013)

(quoting Milligan v. Schenly Distillers, Inc., 584 S.W.2d 751, 753 (Ky. App.

1979)). Breitenstein undoubtedly has an interest that would be affected by the

decision of an appellate court, regardless of whether that interest is affected

adversely or favorably.

This Court has required strict compliance, rather than substantial

compliance, with naming indispensable parties in the notice of appeal. City of

Devondale v. Stallings, 795 S.W.2d 954, 956 (Ky. 1990); see also Hutchins v.

Gen. Elec. Co., 190 S.W.3d 333, 337 (Ky. 2006) (holding that “[a] policy of strict

compliance governs the time within which an appellant must invoke the court’s

jurisdiction, naming all indispensable parties.”). The Court in Stallings

explained that policy considerations “mandate strict compliance with the time

limit on filing of the notice of appeal. Potential parties to an appeal have the

right to know within the time specified in the rule that they are parties.” 795

S.W.2d at 957. Indeed, caselaw dating back nearly sixty years indicates that

appellate courts declined to address the adequacy or reasonableness of

15
attorney’s fee awards unless the attorney is named as a party in the appeal.

See Carter v. Carter, 382 S.W.2d 400 (Ky. 1964).

In a prior decision, this Court explained when attorneys are

indispensable parties for the purposes of disputing an attorney’s fee award in

the context of divorce proceedings. Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky.

2001), overruled on other grounds by Smith v. McGill, 556 S.W.3d 552 (Ky.

2018). In Neidlinger, an appellant filed a motion requesting that appellee

reimburse her approximately $9,700 for costs and attorney’s fees appellant had

already paid. Id. at 517. The circuit court overruled the motion, and on

appeal the Court of Appeals concluded that the attorney’s fees issue was

unpreserved for appellate review because appellant did not name her attorney

as a party to the appeal. Id. at 517-18. On discretionary review, this Court

explained that “[i]f the ‘reasonable amount’ is ordered paid directly to the

attorney, the attorney ‘may enforce the order in his own name’ and, thus is the

real party in interest and a necessary and indispensable party to any appeal

from that order.” Id. at 519 (quoting KRS 403.220). However, if an attorney’s

fee “is ordered paid to the client, the client remains the primary obligor of the

fee, [and] thus is the real party in interest with respect to an appeal from the

order.” Id.

Later, in Fink, 519 S.W.3d 384, the Court of Appeals again addressed the

indispensable party issue in the divorce proceeding attorney fee context. In

Fink, a circuit court ordered James Fink to pay $5,000 in Elizabeth Fink’s

attorney’s fees in a divorce proceeding, noting that the sum was payable

16
directly to counsel who could enforce the order in his name. Id. James failed

to name Elizabeth’s attorney in the notice of appeal. Id. As a result, the Court

of Appeals concluded that failure to name an indispensable party is fatal to an

appeal and dismissed James’s appeal. Id. at 385. The Court of Appeals noted

that any attempt to amend the notice of appeal must have been accomplished

within the normal time requirements for filing the notice of appeal. Id.

In his dissent, then-Judge Thompson opined that dismissing the appeal

is particularly troublesome because it precludes appellate review of the

attorney fee issue. Id. at 386. Requiring an attorney to be named as a party to

an appeal is illogical because a client “always will be primarily obligated to pay

her attorney.” Id. Additionally, Judge Thompson noted that Elizabeth’s

attorney agreed that James should have been permitted to amend his notice of

appeal. Id.

If we applied the strict compliance mandate from Stallings and reinforced

the view of the majority of the Court of Appeals in Fink, it would lead to a

conclusion that Charles’s appeal should be dismissed in its entirety because he

failed to list Breitenstein as a party in the notice of appeal. According to these

cases, it is that simple – to satisfy the indispensable party requirement, an

appellant need only list the attorney, who was never considered a “party” in the

proceedings below, even at the time an attorney’s fee award was requested

pursuant to KRS 403.220, as a party in the appellate action. While we

acknowledge that courts have applied strict compliance in the context of

notices of appeal and indispensable parties since the Stallings decision, recent

17
cases from this Court and changes to our rules of appellate procedure mark a

shift in those views.

In M.A.B. v. Cabinet for Health and Family Services, 635 S.W.3d 90, 91

(Ky. 2021), M.A.B. timely appealed a circuit court decision that terminated her

parental rights to the Court of Appeals. The appellate court dismissed her

appeal for failure to name the children in the notice of appeal. While the

children’s guardian ad litem was served with the notice of appeal, M.A.B. did

not name her children in the notice of appeal. Id. at 92. This Court held that

substantial compliance with Kentucky Rule of Civil Procedure (CR) 73.03, the

rule governing notices of appeal, shall be found if a guardian ad litem is given

adequate notice of an appeal from a termination of parental rights even if the

notice fails to name the child or children. Id. at 93. The Court found difficulty

in rationalizing the denial of access to a constitutional right to appeal based

entirely on a technicality. Id. In its holding, this Court reiterated that

if an appeal’s alleged defect is anything other than failure to file a
timely notice of appeal, timely cross-appeal, or timely notice for
discretionary review, an appellate court should consider, on a
case-by-case basis, an adequate remedy to address the alleged
defect.

Id. at 97. While this Court did not explicitly state that children are not

necessary parties to a termination appeal, we concluded that “serving the

child's guardian ad litem with the notice of appeal is the functional equivalent

of naming the child: it is sufficient to protect the child's interests, give the child

adequate notice of the appeal, and confer jurisdiction to the appellate court

18
over the child.” Id. We remanded the case to the Court of Appeals for

consideration of M.A.B.’s appeal on the merits. Id.

Similarly, Cates v. Kroger, 627 S.W.3d 864 (Ky. 2021), involved

constitutional challenges to a workers’ compensation statute. An appellant

failed to name the Attorney General as a party in his notice of appeal. Despite

this failure, this Court held that “[t]he Attorney General had notice, has not

shown or argued prejudice, and filed a timely brief. We find despite strict

compliance not being satisfied, the policy considerations behind the rule are

met in this case.” Id. at 874; see also Lassiter v. Am. Express Travel Related

Servs. Co., Inc., 308 S.W.3d 714 (Ky. 2010) (holding that naming the

Department of Treasury in the caption of the notice of appeal is the functional

equivalent of naming the State Treasurer, an indispensable party); Flick v. Est.

of Wittich, 396 S.W.3d 816 (Ky. 2013) (holding that naming the estate in the

notice of appeal was the functional equivalent of naming the co-

administrators).

Like the guardian ad litem in M.A.B., Breitenstein had sufficient notice of

the appeal and the ability to discern that Charles disputed the attorney’s fee

award. Breitenstein was named as the attorney on the distribution list and

was also named as Louanne’s attorney on the first filing in the Court of Appeals

and included on that distribution list. While we recognize that naming an

individual as a party to an appeal and distributing a notice of appeal to a

party’s attorney are not the same, Breitenstein nonetheless had adequate

19
notice of the appeal and the ability to protect his own interest in seeking

affirmation of the attorney’s fee award.

We also must take this opportunity to discuss the rules that formerly

and currently apply to appeals. Previously, appeals were governed by CR 73.

CR 73.03(1) stated that “[t]he notice of appeal shall specify by name all

appellants and appellees.” (Emphasis added). For decades, courts in this

Commonwealth have imposed a strict compliance requirement in conjunction

with this rule. Hagan v. Transp. Cabinet, 559 S.W.3d 783, 784 (Ky. 2018);

Nelson Cnty. Bd. of Educ. v. Forte, 337 S.W.3d 617, 626 (Ky. 2011); Stallings,

795 S.W.2d at 957.

But this Court has since adopted new Rules of Appellate Procedure

(RAP), effective January 1, 2023. These new rules mark a shift from the

potential procedural traps formerly faced by parties in appeals. For example,

RAP 2(A)(2) states that

[u]pon timely filing of the notice of appeal from a final and
appealable order on all claims in an action, all parties to the
proceedings from which the appeal is taken, except those who have
been dismissed in an earlier final and appealable order, shall be
parties before the appellate court.

The new rule automatically joins all parties, who have not been dismissed,

from the proceedings below in an appeal. Rule 2(A)(2) continues to state that

[t]he timely filing of a notice of appeal is jurisdictional. The failure
to comply with any other rule of appellate procedure, or any order
of the court, does not affect the validity of the appeal, but is
ground for such action as the appellate court deems appropriate as
set forth in RAP 10.

RAP 10(B) states that

20
 [a] party’s failure to take any step other than the timely filing of a
notice of appeal, cross-appeal, or motion for discretionary review
does not affect the validity of the appeal or other proceeding in an
appellate court.

While, under this rule, the court reserves the ability to issue a deficiency

notice, strike filings, or impose fines, for example, the appeal is still valid

despite the failure to comply with appellate rules other than timely filing of a

notice of appeal, notice of cross-appeal, or motion for discretionary review.5 So,

the failure to name an indispensable party is no longer automatically fatal to

an appeal. These rules, interpreted together, indicate that strict compliance for

naming an indispensable party should no longer be required.

As such, we hold that Charles’s failure to name Breitenstein as a party in

the notice of appeal filed with the Court of Appeals was not a fatal defect.

Charles timely filed the notice of appeal and included an argument about the

validity of the attorney’s fee awarded to Breitenstein. Breitenstein was listed in

the distribution list and thus had adequate notice of the appeal. Therefore, the

Court of Appeals erred by declining to examine the attorney’s fee issue. See

M.A.B., 635 S.W.3d at 97.

III. The circuit court did not abuse its discretion in awarding
attorney’s fees.

Finally, Charles argues that the award of attorney’s fees was an abuse of

discretion. Specifically, he states that he is unable to pay the award and it is

5 For example, RAP 2(B)(2) still requires an appellant to specify the parties to

the proceedings from which the appeal is taken in the notice of appeal. However,
under RAP 10(B), failure to comply with this requirement does not automatically
render the appeal invalid.
21
excessive. The Court of Appeals declined to address Charles’s attorney fee

award argument, opining that it was not properly before the court. One year

prior, a separate panel of the Court of Appeals declined to dismiss the appeal

for failure to name an indispensable party but held that the attorney fee issued

failed for want of jurisdiction. Thus, the Court of Appeals, in its August 6,

2021 opinion, expressed no opinion on the attorney’s fee award.

In seeking maintenance modification, Louanne was originally

represented by J. Fox DeMoisey of DeMoisey Law Office, PLLC. By a letter

dated June 7, 2016, DeMoisey agreed to represent Louanne for $1 and agreed

to front the cost of the litigation but reserved the right to request attorneys’ fees

and costs pursuant to KRS 403.220. At some point in the litigation, Charles

moved to disqualify DeMoisey because of a personal relationship that developed

between Louanne and DeMoisey. Charles argued that DeMoisey was a

necessary witness regarding the nature of the relationship DeMoisey shared

with Louanne and the level of financial support DeMoisey provided Louanne,

which was integral to the maintenance modification issue. Louanne and

DeMoisey admitted they were in a relationship but insisted they were not

cohabitating. In a December 2017 order, while the circuit court did not direct

disqualification, the circuit court suggested that it would be prudent for

DeMoisey to “stay clear of the case.” At that point, Breitenstein, an

independent contractor with DeMoisey Law Office, PLLC, agreed to take on the

case and continued to handle the case through its conclusion.

22
 KRS 403.220 provides that in any proceeding under Chapter 403, the

marriage dissolution and child custody chapter, a circuit court can award

attorney’s fees. That statute states that

[t]he 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 of judgment.
The court may order that the amount be paid directly to the
attorney, who may enforce the order in his name.

Louanne requested that the circuit court order Charles to pay $20,215 for

DeMoisey’s services, $76,725.00 for Breitenstein’s services, and costs in the

amount of $7,257.10 for a total request of $104,197.10. The circuit court

recognized that the DeMoisey Law Office agreed to represent Louanne for $1, or

essentially pro bono. The circuit court considered the disparity in income

between Louanne and Charles, and that Louanne would not have been able to

litigate these matters if Breitenstein had not agreed to represent her pro bono.

Additionally the circuit court relied on CR 37.01(d), which states that if a court

grants a motion to compel discovery, “the court shall, after opportunity for

hearing, require the party or deponent whose conduct necessitated the motion

or the party or attorney advising such conduct or both of them to pay to the

moving party the reasonable expenses incurred in obtaining the order,

including attorney’s fees . . . .” As such, the circuit court ordered that Charles

pay half of Breitenstein’s fee, plus costs. The circuit court did not order

Charles to pay for any of DeMoisey’s work because the court urged DeMoisey to

23
distance himself from the litigation. Therefore, the circuit court awarded

$45,619.60 to Breitenstein.

When reviewing a request for attorney’s fees pursuant to KRS 403.220, a

circuit court must consider the parties’ financial resources and may order one

party to pay a reasonable amount of the other party’s attorney’s fees. Smith,

556 S.W.3d at 556. A circuit court’s award of attorney’s fees is reviewed for

abuse of discretion. Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004). A

circuit court abuses its discretion if its decision was “arbitrary, unreasonable,

unfair, or unsupported by sound legal principles.” English, 993 S.W.2d at 945.

The 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.

Gentry v. Gentry, 798 S.W.2d 928, 938 (Ky. 1990).

Here, the circuit court properly considered the parties’ financial

resources and incomes, among other factors, and awarded attorney’s fees

accordingly. The circuit court cut the requested fee in half and did not order

Charles to pay any of DeMoisey’s outstanding fees. This is notable, particularly

considering the circuit court’s recognition that a “great deal of Mr.

Breitenstein’s work was created by [Charles’s] discovery noncompliance.” “[A]n

allocation of court costs and an award of an attorney’s fee are entirely within

the discretion of the court.” Neidlinger, 52 S.W.3d at 519 (quotation omitted).

As such, we conclude that the attorney’s fee award was not unreasonable or

24
unfair and thus the circuit court did not abuse its discretion in ordering

Charles to pay attorney’s fees.

CONCLUSION

Accordingly, we reverse the Court of Appeals and reinstate the circuit

court’s judgment.

Vanmeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell, JJ.,

sitting. All concur. Thompson, J., not sitting.

25
COUNSEL FOR APPELLANT/CROSS-APPELLEE:

Allison Spencer Russell
Simms Russell Law, PLLC

COUNSEL FOR APPELLEE/CROSS-APPELLANT:

J. Fox Demoisey
Demoisey Law Office, PLLC

26