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Cite as 2015 Ark. App. 526 ARKANSAS COURT OF APPEALS DIVISION III No. CV-15-135 JONI R. COLLINS Opinion Delivered SEPTEMBER 30, 2015 APPELLANT APPEAL FROM THE FAULKNER V. COUNTY CIRCUIT COURT [NO. 23CR-10-429] MITCHELL L. COLLINS HONORABLE DAVID M. CLARK, APPELLEE JUDGE AFFIRMED DAVID M. GLOVER, Judge In an order filed on May 29, 2014, the Faulkner County Circuit Court found appellant Joni Collins had violated the cohabitation provision of the separate property-settlement agreement in her divorce from appellee Mitchell Collins and terminated Mitchells alimony obligation. 1 On June 9, 2014, Mitchell filed a motion for attorneys fees, requesting $29,597.50 in attorneys fees and costs of $1522.35, citing Arkansas Code Annotated section 16-22-308 and Tiner v. Tiner, 2012 Ark. App. 483, 422 S.W.3d 178, as authority for his request. Joni resisted this motion. On October 7, 2014, the trial court entered an order granting Mitchell $25,332.50 in attorneys fees and $1522.35 in costs. On October 21, 2014, Joni filed a motion for reconsideration; the motion was deemed denied after thirty days when the trial court took no action. On November 20, 2014, Joni filed her notice of appeal from 1 The underlying merits of this decision are on appeal to this court under a separate appeal, Collins v. Collins, 2015 Ark. App. 525, also decided on this date.
Cite as 2015 Ark. App. 526 the trial courts grant of attorneys fees. On appeal, Joni argues that the trial court erred in awarding Mitchell attorneys fees. Specifically, she argues that section 16-22-308 is not applicable because the action for termination of alimony was not a breach of contract but instead was for rescission or enforcement of a contract; that Mitchell was not the prevailing party because he did not prevail on the issue of retroactive termination of alimony; that there were no specific findings of fact made by the trial court that this court can examine in violation of Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990); that Mitchell abandoned the issue of attorneys fees when he filed his notice of cross-appeal because the motion for attorneys fees was pending but not ruled upon when Mitchell filed notice of his cross-appeal that abandoned all pending issues; and that if the motion for attorneys fees was proper, it was excessive. We affirm the award of attorneys fees. Jonis first two arguments pertain to whether attorneys fees were properly awarded under Arkansas Code Annotated section 16-22-308 (Supp. 2013), which provides, in pertinent part, In any civil action to recover on . . . breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorneys fee to be assessed by the court and collected as costs.” Joni argues that the action to terminate alimony was not a breach of contract but a rescission of a contract or enforcement of a contract; she further argues that, even if section 16-22-308 is applicable, Mitchell was not the prevailing party and is therefore not entitled to attorney fees. We need not address whether this statutory provision entitles Mitchell to an 2
Cite as 2015 Ark. App. 526 award of attorneys fees, as this court held in Tiner that a trial court has inherent power to award attorneys fees in domestic-relations cases, and whether the circuit court should award such fees and the amount thereof are matters within the circuit courts discretion. 2012 Ark. App. 483, at 15, 422 S.W.3d 178, 187. Joni next argues that the trial court did not make any pertinent analysis of the factors set forth in Chrisco, supra, in awarding the attorneys fee. However, in Tiner, this court also held that an analysis of the Chrisco factors is not required for an award of attorneys fees in domestic-relations cases, and that an exhaustive hearing on the amount of attorneys fees is not necessary in such cases because the trial court has presided over the proceedings and gained familiarity with the case and the services rendered by the attorney. 2012 Ark. App. 483, at 16, 422 S.W.3d 178, 187. Due to the trial courts intimate acquaintance with the record and the quality of service rendered, we usually recognize the superior perspective of the trial judge in assessing the applicable factors. Id. Furthermore, documentation of time and expense in a divorce case has not been strictly required when the trial court has had the opportunity to observe the parties, their level of cooperation, and their obedience to court orders. Id. Joni also argues that Mitchell has abandoned his request for attorneys fees. Mitchell filed his motion for attorneys fees on June 8, 2014. He then filed his notice of cross-appeal on June 17, 2014, which contained the mandatory language relating to the abandonment of any pending but unresolved claims as required by Rule 3(e)(vi) of the Arkansas Rules of Appellate ProcedureCivil. The purpose of the abandonment requirement is to cure a 3
Cite as 2015 Ark. App. 526 recurring finality problem. In re: Arkansas Rules of the Supreme Court and Court of Appeals; Rules of Appellate ProcedureCivil; and Rules of Civil Procedure, 2010 Ark. 288, 309 (per curiam). The grant of attorneys fees is a collateral matter that does not bear upon the finality of the final judgment on the merits. Midwest Terminals of Toledo, Inc. v. Palm, 2011 Ark. 81, 378 S.W.3d 761. We hold that Mitchell did not abandon his claim for attorneys fees when he filed his notice of cross-appeal. Lastly, Joni argues that, assuming Mitchells motion for attorneys fees was proper, the amount awarded was unreasonable. An award of attorneys fees will not be set aside absent an abuse of discretion, which occurs when discretion is applied thoughtlessly, without due consideration, or improvidently. Tiner, supra. When addressing a trial courts award of attorneys fees, our courts have often observed that there is no fixed formula in determining what is reasonable. Tiner, supra. Here, Mitchells attorney attached a billing statement to the motion for attorneys fees. Mitchell requested $29,597.50 in attorneys fees, but the trial court awarded him only $25,332.50. We cannot say that the trial court abused its discretion in making the award of attorneys fees in the amount it did. Affirmed. VIRDEN and VAUGHT, JJ., agree. Worsham Law Firm, P.A., by: Richard E. Worsham, for appellant. Wagoner Law Firm, P.A., by: Jack Wagoner III and Harrison Kemp, for appellee. 4
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