RAP 20 Emergency Relief Is Confined to Injunction Orders; KRS 403.220 Appellate-Fee Requests Belong in Family Court

I. Introduction

Chastity Ellison v. Hon. Terri Schoborg (Ky. Apr. 23, 2026) arises out of a dissolution action in Kenton Family Court concerning the division of Wayne Ellison’s 401(k). Although the parties’ separation agreement contemplated a QDRO dividing only the marital portion of the account (with the marital portion defined as accruals from marriage to divorce), a tracing analysis was never performed. A QDRO nonetheless issued, and more than $160,000 was transferred to Chastity Ellison—far exceeding the contributions made during the marriage.

The family court set aside the QDRO nunc pro tunc under CR 60.01 (clerical mistake/oversight) and ordered an expert to determine the marital/non-marital split, with a later lump-sum judgment contemplated. Chastity Ellison’s initial direct appeal was dismissed as interlocutory by the Court of Appeals in Ellison v. Ellison, 2023-CA-1136-MR, 2024 WL 4714978 (Ky. App. Nov. 8, 2024), because damages had not yet been quantified.

After further procedural skirmishing (including bankruptcy filings triggering the automatic stay under 11 U.S.C.A. § 362(a) and a writ effort denied by the Court of Appeals), Chastity Ellison sought “emergency relief” in the Supreme Court under RAP 20 to stay enforcement of the family court’s CR 60.01 order. Wayne Ellison responded and requested attorney’s fees under KRS 403.220.

The Supreme Court’s decision is a procedural clarification: (1) RAP 20 emergency relief is available only in the injunction context and only through the pathway RAP 20 itself establishes, and (2) attorney’s fees sought under KRS 403.220—even for appellate-related work—are generally better decided by the family court because the statute requires fact-finding about the parties’ financial resources.

II. Summary of the Opinion

  • Emergency relief denied: The Court held RAP 20 was the wrong procedural vehicle to obtain a stay of the family court’s CR 60.01 nunc pro tunc order setting aside the QDRO.
  • Attorney’s fees denied (without prejudice in substance): The Court denied Wayne Ellison’s fee request made in response to the Supreme Court filing, explaining that KRS 403.220 requires consideration of both parties’ financial resources—an inquiry better suited to the circuit/family court on remand.
  • Remand: With no other matters pending in the Supreme Court proceeding, the case was remanded to the Kenton Circuit Court, Family Division, for further proceedings.

III. Analysis

A. Precedents Cited

  1. Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004)
    The Court of Appeals relied on Hoskins to describe the two traditional classes of writ relief: (1) lower court acting outside jurisdiction with no intermediate remedy; or (2) lower court acting erroneously within jurisdiction with no adequate remedy by appeal/otherwise and irreparable injury. In this Supreme Court opinion, Hoskins matters chiefly as background to explain why the Court of Appeals rejected extraordinary relief and directed the litigant toward a direct appeal after entry of a final order.
  2. Ellison v. Ellison, 2023-CA-1136-MR, 2024 WL 4714978 (Ky. App. Nov. 8, 2024)
    The interlocutory-dismissal decision frames the procedural posture: the family court had found liability (unjust enrichment/clerical mistake consequences) but had not fixed damages because the expert calculations were pending. This explains why the appellate path was not yet available and why subsequent filings focused on emergency or extraordinary relief.
  3. Brosnan v. Brosnan, 359 S.W.3d 480 (Ky. App. 2012)
    Invoked by Wayne Ellison for fees, Brosnan is central to the Supreme Court’s fee ruling. The Court adopted Brosnan’s approach that attorney’s fees associated with an appeal are “not properly presented” to the reviewing court and are left to the family court’s discretion, consistent with the statutory requirement to consider financial resources.
  4. 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)
    Quoted through Brosnan, Neidlinger supplies the policy rationale for KRS 403.220: preventing one spouse from controlling the litigation outcome through superior finances. The Supreme Court used that rationale to emphasize why the trial court must compare financial resources before shifting fees.
  5. Smith v. McGill, 556 S.W.3d 552 (Ky. 2018)
    Mentioned to clarify that Neidlinger was overruled on other grounds, preserving the fee-shifting principle relied upon here.
  6. Maynard v. Maynard, 251 S.W.2d 454 (Ky. 1952)
    Cited via Brosnan for the proposition that appellate-fee issues are generally committed to the family court’s discretion—reinforcing the Supreme Court’s decision not to undertake fee fact-finding on a limited record.

B. Legal Reasoning

1. Why RAP 20 could not support the requested stay

The Court treated the motion as a mismatch between the relief sought (a stay of enforcement of a CR 60.01 order setting aside a QDRO) and the rule invoked (RAP 20). RAP 20 governs “relief from an order granting or denying an injunction.” The family court’s July 25, 2023 order did not grant or deny injunctive relief; it corrected/undid a clerical-oversight consequence in a QDRO under CR 60.01 and directed a process for determining the proper marital share and any repayment.

The Court also read RAP 20(F)(5) as limiting Supreme Court “emergency relief” review to circumstances where the Court of Appeals acted under RAP 20(D). But the Court of Appeals had denied emergency relief under RAP 60(H), not RAP 20(D). That procedural fact independently foreclosed RAP 20 as the pathway to Supreme Court action.

In short, the Supreme Court denied the motion because: (a) the underlying order was not an injunction order, and (b) the Court of Appeals did not issue an RAP 20(D) emergency ruling that could be reviewed under RAP 20(F)(5).

2. Why attorney’s fees were denied at this stage

Wayne Ellison sought $1,500 in fees under KRS 403.220 based on the costs of responding to what he characterized as dilatory filings. The Supreme Court did not hold fees were unavailable; instead, it held the decision-maker and record were wrong for awarding them at this point.

KRS 403.220 authorizes fee shifting only “after considering the financial resources of both parties.” The Court characterized that inquiry as “inherently fact-intensive” and emphasized that the appellate record before it did not permit a reliable financial-resources assessment. Consistent with Brosnan v. Brosnan, the Court held the fee request should be addressed by the family court on remand, where an evidentiary record can be developed and discretion exercised in the first instance.

C. Impact

  • Rule-channeling for emergency motions: The opinion reinforces that litigants must match the rule invoked to the character of the order challenged. RAP 20 is not a general “emergency stay” provision; it is tethered to injunction orders and the specific RAP 20 review sequence.
  • Appellate restraint in domestic fee shifting: Even when fees are incurred responding to appellate or extraordinary-writ activity, the Supreme Court signaled that KRS 403.220 determinations ordinarily belong in family court because the statutory standard depends on comparative financial resources.
  • Practical effect in QDRO/CR 60.01 disputes: The Court did not address the merits of setting aside the QDRO under CR 60.01, but it implicitly allowed the family court’s corrective process (expert tracing, later damages determination) to proceed without interruption from an improperly grounded appellate “emergency” motion.

IV. Complex Concepts Simplified

QDRO (Qualified Domestic Relations Order)
A court order used to divide certain retirement plan benefits incident to divorce. It instructs the plan administrator how to pay a portion of benefits to an “alternate payee” (often the former spouse).
Tracing (marital vs. non-marital portion)
An accounting method to identify what part of an asset is marital (acquired during the marriage) versus non-marital (owned before marriage or otherwise excluded). Here, the parties contemplated tracing to ensure only the marital portion of the 401(k) was divided.
Nunc pro tunc
Literally “now for then.” A corrective order that treats the record as corrected retroactively to reflect what should have occurred, typically used for clerical/oversight errors rather than new substantive decisions.
CR 60.01 (clerical mistakes)
A rule allowing a court to correct clerical mistakes or errors from oversight/omission in judgments or orders. The family court used it to set aside the QDRO entered without the contemplated tracing and resulting in an erroneous transfer.
Interlocutory order / finality (CR 54.01)
An interlocutory order resolves less than all claims or does not fix the relief awarded (e.g., liability without quantified damages). Such orders generally are not immediately appealable as final judgments.
Automatic stay (11 U.S.C.A. § 362(a))
Upon filing bankruptcy, most collection and court proceedings against the debtor are paused by operation of law, unless the bankruptcy court grants relief from the stay.
Writs of mandamus/prohibition
Extraordinary remedies that can stop a lower court from acting outside its jurisdiction or correct certain serious errors when no adequate appeal remedy exists and irreparable harm would otherwise occur.
KRS 403.220 attorney’s fees
A domestic-relations fee-shifting statute designed to level the playing field when one spouse has superior financial resources, requiring the court to consider both parties’ finances before ordering payment.

V. Conclusion

This unpublished Kentucky Supreme Court opinion is a procedural guidepost rather than a merits ruling on the QDRO correction. It holds that RAP 20 is not a general emergency-stay mechanism and cannot be used to stay enforcement of a CR 60.01 order that is not an injunction ruling—especially where the Court of Appeals’ emergency action was taken under a different rule (RAP 60(H)). It also reinforces that KRS 403.220 fee shifting turns on comparative financial resources, making the family court the proper forum to decide attorney’s fees (including fees incurred in appellate-related proceedings) on an adequate factual record. The case is remanded for the family court to continue the expert-driven valuation/tracing process and any resulting monetary adjustments.