LYNN B. HARGIS APPELLANT
ALLEN HARGIS APPELLEE
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26DR-07-621]
HONORABLE THOMAS LYNN WILLIAMS, JUDGE
Tripcony, May & Associates, by: James L. Tripcony, for
& Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha
C. Taylor, for appellee.
BRANDON J. HARRISON, Judge.
recited more fully in a companion case to this appeal,
Hargis v. Hargis, 2018 Ark.App. 469, the circuit
court entered an order in February 2017 and decided a
dispute, which Colonel Allen Hargis filed, over how much
military-retirement money Lynn Hargis was entitled to receive
from the property-settlement agreement the divorcing couple
signed in 2009. A separate and subsequent order awarding Col.
Hargis $18, 000 in attorney's fees against Ms. Hargis
was entered. This appeal addresses the circuit court's
decision to make Ms. Hargis pay Col. Hargis's
attorney's fees. And the narrow issue presented-as we
have framed it-is whether Ms. Hargis was denied a sufficient
opportunity under the rules of civil procedure to oppose the
fee request before the circuit court decided it. The answer
March 2017, Col. Hargis timely moved for attorney's fees
pursuant to Arkansas Rule of Civil Procedure 54(e)(2) and
Ark. Code Ann. § 16-22-308. Attached to the
colonel's motion was an affidavit from his attorney that
detailed $18, 325 in attorney's fees. Col. Hargis had
also hired Col. Mark Sullivan to testify as an expert on
military-retirement law during the main dispute over the
parties' property-settlement agreement. (For more of that
history the reader must turn to the companion case.) Suffice
it to say that Col. Sullivan charged $15, 871.20 for his
services as a testifying expert witness.
Hargis timely opposed the motion. She argued, among other
things, that the statute did not apply to a
domestic-relations case and that Col. Hargis's
"financial abilities" "far exceed[ed]"
hers. She asked the court to either deny the motion outright
or set a hearing so she could develop the parties'
respective financial pictures and abilities to pay fees.
April 27, the court ordered Ms. Hargis to pay Col.
Hargis's attorney's fees (minus an offset) but
disallowed the expert fee:
1. Allen Hargis is the prevailing party in an action based in
contract to enforce a Property Settlement Agreement. He is
also the prevailing party on Defendant's Counter-Motion
to "interpret" a contract.
2. Ark. Code Ann. § 16-22-308 allows the trial court to
award attorney fees to the prevailing party in contract
actions. ARCP rule 54 provides that a demand for attorney
fees be made by Motion.
4. [Col. Hargis] is awarded attorney fees incurred with Lance
B. Garner in the amount of $18, 325.00. This judgment is
offset against the $5, 210.55 awarded to [Lynn Hargis]
previously for past COBRA payments. The balance due and owing
to [Col. Hargis] is $13, 114.45 with post-judgment
the order was entered, Ms. Hargis moved "for relief
pursuant to Ark. R. Civ. P. 59," extended her time to
appeal the fee order under Ark. R. App. P.-Civ. 4(a)-(b)
(2017), and argued that she had a due-process right to appear
and oppose Col. Hargis's motion for fees. The motion was
deemed denied in the circuit court. Ms. Hargis timely
appealed the proper orders.
court, Ms. Hargis presses that the circuit court was required
to hold a hearing on Col. Hargis's motion so she could
present evidence of the parties' relative "financial
abilities." Being denied that opportunity, she says, was
a procedural due-process ...