attorney's fees

[hesthedevil]

What is the name of your state (only U.S. law)? Kentucky

I retained an attorney with a 3k retainer a year ago. I needed him to represent me against my ex (not married) with whom I have a child. We own a home, and we needed to set up visitation, child support, etc. We have been to court 4 5 or times, plus attended mediation. Court orders that were put into place guided me to allow my ex to take most of our stuff out of our home per our mediation agreement. I have also paid my attorney over 2k more. I also have a 4k bill that my attorney keeps harping me about.

This is the problem-at our last hearing (where my ex was facing contempt charges for refusing to pay the court-ordered house payments and child support), my ex's attorney (his 3rd) said the judge does not have subject matter jurisdiction.

From what I have learned here and online, family court does not SMJ over our case bc we were not married. So, this has all been wrong!

I feel very strung along by my attorney. Essentially, the only court order which has held up is the child support (which is in arrears, and we are supposed to go back to court on MOnday May 12th, as a continuance from the last hearing of contempt). I could have gotten child support without an attorney!

Shouldn't he have known that there was no SMJ to handle this in family court? Is this malpractice? I am not entertaining the idea of suing him, but I am curious how I can deal with him regarding these fees.

He is still charging me $175.00 per hour. I dropped a notice by his office a few weeks ago, and he charged me the minimum 15 minutes. Please help me!

[Dandy Don]

Do you still need his continuing services or not? Did you sign a fee agreement/contract with him? You have the option of firing him and/or filing a complaint against him with the Kentucky State Bar Association.

[hesthedevil]

This upcoming Monday we have court for my ex to answer contempt charges (which he'll get out of bc no SMJ), for the court to order the % for medical, education, and extracurricular expenses for our son. So, yes, I guess I do need him for this.

I would like to talk to my attorney about how I feel after court on Monday. Unless I get a better suggestion, I will try to explain how I feel (again), but he has already told me that bc my ex is filing BK, even if the judge orders my ex to pay my attorney's fees (which she won't bc my attorney has not filed a motion asking for this), he will come after me for the fees bc of the ex's BK.

I may have to get nasty about filing a complaint, but I hope he agrees that he has earned more than his fair share.

Yes, I signed an agreement a year ago that I would pay the hourly fee. My point is that it was all filed in the wrong court and a complete waste of time, which now has my behind on the line for a $250k mortgage that is 6 months behind...

[hesthedevil]

Bumping this up. WHat should I do? Court is tomorrow...

[azlawstudent]

Why don't you call your attorney before court and ask him about the subject matter jurisdiction issue? Just because the opposing counsel said the family court had no subject matter jurisdiction doesn't mean that it doesn't or that you don't have a good argument that it does. I imagine your lawyer's argument is that subject matter jurisdiction in the family court is proper because the dispute involves child support, a family law issue. It is possible your lawyer misfiled, but that doesn't necessarily equate to malpractice, although he should probably not bill you for the time attributed to the misfiling. In any event, talk with him about it before the trial and ask why he filed in family court.

If it makes you feel any better, I watched oral arguments on a case before the Navajo Supreme Court last semester. The case had been going on for 10 years, had been in more courts could keep track of. The parties were still arguing whether subject matter jurisdiction in the Navajo courts was proper. In ten years, the merits of the case had never been heard by any court.

And even if the court orders your ex to pay your legal bills, you are still responsible for them. All such a court order means is that you can collect the amount of your legal bills from your ex.

[Ronin]

Family courts certainly have subject matter jurisdiction over child custody and child support matters between parents, whether the parents are married or not. But the court would not have subject matter jurisdiction to handle a case between separating unmarried parents as a divorce.

In this case the issue the fathers attorney is most likely targeting is what appears to be the equivalent of spousal support, in the form of the ordered mortgage payments. That could be a legitimate complaint, given this couple was never married.

[latigo]

The state where I practice is far removed from Kentucky but it doesn’t take a seasoned Kentucky practitioner to suspect that you’ve been taken to the cleaners.

Nor such to read the cases of Glidewill v. Glidewell, 790 S.W.2d 925 (Ky. Ct. App. 1990) and Murphy v. Bowen, 756 S.W.2d 149 (Ky. Ct. App. 1988) which have ruled that NO property rights can arise from a relationship between man and woman based on cohabitation alone.

So unless Kentucky has since enacted some form of domestic partnership legislation (which I have not found in a quick research of the KRS) or those earlier cases announcing majoirtry law have been overruled, my question is the same as the one you are now pondering after spending a needless, small fortune:

On what basis has this Kentucky family court assumed jurisdiction over any of your jointly owned property?

I urge you to file a grievance with the Kentucky State Bar Association over these definitely obscenely excessive and perhaps unnecessary attorney fees.

Why any unwed mother would need to shell out that kind of money to establish paternity, child custody and support seems inexplicable. As you say it could be done pro se.

Should you find that the court did have jurisdiction to partition and make distribution of assets in a paternity suit, I’d be much interested in knowing on what authority.

Thanks

Sax

[hesthedevil]

UPDATE:
Prior to the hearing yesterday, my attorney showed me the file from child support, which indicates my support arrearage is on its way, via an interception of my ex's 2008 tax return. My attorney wanted to ensure before court started that, "I will be getting this money when it reaches your hands, right?" I had no choice but to say yes so that we could proceed.

The judge did not rule over SMJ because of my ex's BK stay. She became very agitated when my ex lied to her again and sentenced him to 2 weeks jail time for lying to her face, contempt charges for nonpayment of support, and being the major "roadblock" to getting a resolution. She also mentioned that when we come BACK (urgh...) for court, she will be looking at the attorney's fees.

Now my question is this: my arrearage is supposed to hit my account on May 25th. If I turn it over to my attorney, then I have no recourse to get it back, even if the judge orders my ex to pay the attorney's fees, right? My ex is in Chapter 7 BK, so can't he just include those in his BK?

Because my attorney knows my case so well, I do not want to start over with a new attorney. We have to go back to yet another hearing. If I file a complaint, I guess it's safe to say that my attorney will not represent me any longer, right? How should I handle this?

[Ohiogal]

Originally Posted by hesthedevil

UPDATE:
Prior to the hearing yesterday, my attorney showed me the file from child support, which indicates my support arrearage is on its way, via an interception of my ex's 2008 tax return. My attorney wanted to ensure before court started that, "I will be getting this money when it reaches your hands, right?" I had no choice but to say yes so that we could proceed.

The judge did not rule over SMJ because of my ex's BK stay. She became very agitated when my ex lied to her again and sentenced him to 2 weeks jail time for lying to her face, contempt charges for nonpayment of support, and being the major "roadblock" to getting a resolution. She also mentioned that when we come BACK (urgh...) for court, she will be looking at the attorney's fees.

Now my question is this: my arrearage is supposed to hit my account on May 25th. If I turn it over to my attorney, then I have no recourse to get it back, even if the judge orders my ex to pay the attorney's fees, right? My ex is in Chapter 7 BK, so can't he just include those in his BK?

Because my attorney knows my case so well, I do not want to start over with a new attorney. We have to go back to yet another hearing. If I file a complaint, I guess it's safe to say that my attorney will not represent me any longer, right? How should I handle this?

Quite frankly you need a new attorney. If you pay the attorney then you are agreeing with the job the attorney did. If you continue to have this attorney handle this case after you believe that the attorney is handling it wrong, you bear fault for the situation. You need a new attorney. You should fire your attorney, file a complaint and go from there.

[hesthedevil]

If I file a complaint, what options might be offered to me regarding these excessive fees and orders from the wrong court?

My brother in law is a licensed attorney on Onio, so he can't represent me in KY, but he told me that if this had happened in Ohio, my attorney would be responsible to pay my ex's 1/2 of the mortgage because if an attorney files something in the wrong court, then the attorney is responsible to pay whatever I was awarded. Does this sound like a correct statement in most states? What is it called so that I can look it up online? With whom do I file a complaint?

Thanks for all the advice recently. It truly is helping me to have your advice as I prepare to advocate my situation.

[azlawstudent]

Even if the judge orders your ex to pay your attorney's fees, you are still liable to your attorney for his fees. The order doesn't shift the liability for the fees to your brother, it simply adds the amount of your attorney's fees to the amount he owes you, but you still have to collect.

Did you ask your attorney about the subject matter jurisdiction question? Since you are pursuing child support, subject matter jurisdiction may be proper in family court even if you were not married to our ex, but that depends upon the state - your attorney can best advise you.

Furthermore, there's nothing unethical about an attorney demanding a client settle a bill. He has, after all, made sure that you get payment and presented your case affirmatively enough that the judge was aware of your ex's perjury in court.

[hesthedevil]

My attorney says that he cannot find any cases where a person was allowed to waive SMJ. He says it is an uphill battle. I agree that I should pay him for the time dealing with child support, but much of the time he billed was for matters with the house, which is not being looked at at this point mainly bc of the BK stay, but even once that is lifted, the judge may decide she has no SMJ. My ex's attorney will continue to argue it.

My attorney did not have anything to do with the perjury issue. My ex has filed maybe 10-15 motions over the past year (among his 3 different attorneys; he goes through them like hotcakes) that just clog up our court dates. The issue this past Tuesday was a motion my ex filed asking that he not be required to pick up our son from my father in law's house bc it causes "an undue burden." My ex has only had to do this once, except for over spring break when I gave him the option to pick up and drop off there OR if he didn't want to do the 1/2 hour drive, he could keep our son for the week. He denied this in front of the judge. The judge became agitated and asked for the email. I showed it to her and she exclaimed, "Get him out of here! Take him into cutstody." She also gave me temporary sole custody, which was weird bc I never asked for that. I am glad, and very much hope my ex gets a clue that we must parent our son, but agin, my attorney had nothing to do with it. My ex hanged himself. He continually lies to her and clogs up our court dates with unnecessary stuff. Meanwhile, I have been left to endure it, while racking up 8K in attorney's fees and a $250,000k mortgage on which he has wiped his hands of through BK...

I really feel that my attorney should make the fees for the house stuff go away. I have no idea how he could seperate the time out at this point. My statements from him do not indicate what the time is spent doing, only charges. Is he required to keep records of what his time is spent doing?

What would you say to him if you were going to have this "come to Jesus" talk?

[Ronin]

Since you were not married, your joint interest in the house is a partnership of sorts. So the family court would not have jurisdiction to address this particular matter, as it could in the context of a divorce proceeding between a married couple.

Even if your attorney sued in another court for your ex's unpaid share of the mortgage payments, it would have been derailed by your ex filing bankruptcy. But you would have still been billed for whatever work was done there.

At this point the bankruptcy court is the only court that has jurisdiction over your ex's interest in the house and his obligations to that debt. You would have to petition the bankruptcy court for the relief you seek. Once the bankruptcy is over, he will be legally clear of the house and will only owe you whatever the bankruptcy court says he does. But if you do not stake a claim in the bankruptcy court on this matter, you will not get one by that court, or later by any other court.

[hesthedevil]

Well that makes sense. So, if I had a judgement from civil court (rather than family court), then I would be in the same boat?

What do I need to submit to the trustee to "stake my claim?" I have the signed court order from the family court judge. What else? Do I need to write a letter to explain?

[Dogmatique]

Originally Posted by hesthedevil

Well that makes sense. So, if I had a judgement from civil court (rather than family court), then I would be in the same boat?

What do I need to submit to the trustee to "stake my claim?" I have the signed court order from the family court judge. What else? Do I need to write a letter to explain?

From your other thread, you have been listed as a creditor, correct?

Call the Trustee - they can usually give you general instructions on how to file a claim but to be honest if I were in your position I'd be considering speaking with a completely different attorney about your ex's bankruptcy and what you can do about it.

You want to make sure you cover everything and at the moment it's not even clear whether he'll be allowed to stay with Ch 7 or forced to convert to a 13; there are just too many unknowns here and you need advice specific to your situation.