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University of Arkansas at Little Rock Law Review

Document Type

Article

Abstract

Arkansas follows the “American Rule,” which is that each litigant is responsible for his or her own attorneys’ fees unless a statute says otherwise. This rule is not without exceptions, however, and one such exception is the “domestic relations exception,” which says that Arkansas’s trial courts have the inherent authority to award attorneys’ fees in domestic relations cases. Between 2016 and 2021, the Arkansas Court of Appeals decided cases with attorneys’ fees awards ranging from $14,190 to $36,284.60, which one judge of that court remarked evidenced an ever-escalating amount of fee awards in domestic relations cases.

At one point, when Arkansas’s trial courts awarded attorneys’ fees in domestic relations cases, they had to apply a set of factors known as the Chrisco factors, and they had to do so on the record, which usually meant a written explanation for why the courts awarded the fees and an explanation for how the courts arrived at the fee amount. On September 12, 2012, however, all of that changed when the Arkansas Court of Appeals decided Tiner v. Tiner, holding that trial courts no longer have to apply the Chrisco factors when awarding attorneys’ fees in domestic relations cases. But that is not all Tiner did; it also told trial courts they no longer have to offer any explanation for their attorneys’ fees decisions, which means a court can order a party to pay attorneys’ fees totaling tens of thousands of dollars without explaining why it ordered the party to pay or how it arrived at the amount the party has to pay.

Unexplained judicial decision-making is a bad idea. An even worse idea is when a court orders a party to pay another party’s attorneys’ fees without explaining the basis of the decision or how it arrived at the amount the party has to pay. When a court makes a decision that results in a person losing his property, that person deserves to know why, and an appellate court deserves an adequately developed record to review in order to determine if that court erred or abused its discretion. This article calls for the Supreme Court of Arkansas or the Arkansas Court of Appeals to overrule Tiner and replace it with a requirement that when a trial court orders a party to pay another party’s attorneys’ fees, that court must provide a written explanation for the basis of its decision and for the basis of the amount it ordered the party to pay.

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