Baker v. Larry Heath Miller). Kenneth Cooper (In re Baker)

• Decision Date: 20 December 2013
• Docket Number: 1120298 and 1120530.
• Citation: 143 So.3d 754
• Parties: Ex parte Robert BAKER and Sheila Baker. (In re Robert Baker and Sheila Baker v. Larry Heath Miller). Ex parte Kenneth Cooper and Barbara Cooper. (In re Kenneth Cooper and Barbara Cooper v. Larry Heath Miller).
• Court: Alabama Supreme Court

143 So.3d 754

Ex parte Robert BAKER and Sheila Baker.

(In re Robert Baker and Sheila Baker

v.Larry Heath Miller).

Ex parte Kenneth Cooper and Barbara Cooper.

(In re Kenneth Cooper and Barbara Cooper

v.Larry Heath Miller).

1120298 and 1120530.

Supreme Court of Alabama.

Dec. 20, 2013.

Petition for Writ of Certiorari to the Court of Civil Appeals (Jefferson Circuit Court, DR–09–1733, Dorothea Batiste, J., Court of Civil Appeals affirmed, without opinion. Cooper v. Miller (No. 2100988, June 15, 2012), 143 So.3d 870 (Ala. Civ. App. 2012) (table).

Sara J. Senesac, Birmingham, for petitioners Robert Baker and Sheila Baker.

Roger C. Appell, Birmingham, for petitioners Kenneth Cooper and Barbara Cooper.

Wendy Brooks Crew and Alyson Hood–Rains of Crew & Howell, P.C., Birmingham, for respondent.

PER CURIAM.

1120298—WRIT QUASHED. NO OPINION.

1120530—WRIT QUASHED. NO OPINION.

STUART, BOLIN, PARKER, SHAW, and MAIN, JJ., concur.

MOORE, C.J., and MURDOCK, J., dissent.

BRYAN, J., recuses himself.^*

MOORE, Chief Justice (dissenting).

Larry Heath Miller was awarded attorney fees from Robert Baker and Sheila Baker and Kenneth Cooper and Barbara Cooper after the Bakers and the Coopers intervened in a dispute between Miller and his wife during divorce proceedings concerning custody of their child. The Bakers and the Coopers appealed. The Court of Civil Appeals affirmed. After granting the Bakers' and the Coopers' petitions for the writ of certiorari, the Court requested supplemental briefing from the parties as to whether Ex parte Handley, 460 So.2d 167 (Ala.1984), upon which the trial court appeared to rely for its award of attorney fees, should be overruled.¹ All parties responded in the negative. The Court now quashes the writs. Because I believe that Handley dangerously misconstrued the nature of equitable power and because I believe “ ‘ “[o]ur duty is to enunciate the law on the record facts” ’ ” even though “ ‘ “none of the parties declaimed the applicable law,” ’ ” Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 960 (Ala.2004) (quoting Forshey v. Principi, 284 F.3d 1335, 1357 n. 20 (Fed.Cir.2002), quoting in turn Empire Life Ins. Co. of America v. Valdak Corp., 468 F.2d 330, 334 (5th Cir.1972)), I respectfully dissent.²

I. Facts and Procedural History

Andrea Miller (“the wife”) filed for divorce from Larry Heath Miller (“the husband”). The husband counterclaimed for divorce and requested that the trial court order the wife to pay his attorney fees. The wife's father and stepmother, Kenneth Cooper and Barbara Cooper (“the maternal grandparents”), moved to intervene and petitioned for custody, alleging unfitness, instability, alcohol abuse, and drug abuse by both the husband and wife. The trial court granted their motion to intervene. Subsequently, the husband's mother and stepfather, Robert Baker and Sheila Baker (“the paternal grandparents”), also moved to intervene and petitioned for custody for similar reasons. The trial court granted the paternal grandparents' motion to intervene as well.

Upon the final judgment of divorce, the trial court awarded sole custody of the child to the husband, awarded visitation to the mother and to the maternal grandparents and the paternal grandparents, and required the maternal grandparents and the paternal grandparents each to pay $5,000 in attorney fees to the husband's attorneys. In his objection to the maternal grandparents' motion to intervene, the husband had claimed that he was unable to pay his attorneys and had requested attorney fees from the maternal grandparents to defend against their petition for custody. The husband also testified at trial that he was unable to pay his attorneys. The trial court's order did not specify the legal basis for awarding attorney fees to the husband.

The maternal grandparents and the paternal grandparents (collectively “the grandparents”) appealed but challenged only the award of attorney fees. The Court of Civil Appeals affirmed the judgment of the trial court without an opinion. The maternal grandparents and the paternal grandparents then petitioned separately for a writ of certiorari, which this Court granted and now quashes.³

II. Standard of Review

“This Court has stated that ‘ “[t]he determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed ... absent an abuse of that discretion.” ’ ” Beal Bank, SSB v. Schilleci, 896 So.2d 395, 400 (Ala.2004) (quoting State Bd. of Educ. v. Waldrop, 840 So.2d 893, 896 (Ala.2002), quoting in turn Ex parte Edwards, 601 So.2d 82, 85 (Ala.1992)). However, “ ‘ “[q]uestions of law are reviewed de novo.” ’ ” Ruttenberg v. Friedman, 97 So.3d 114, 134 (Ala.2012) (quoting Ex parte Terry, 957 So.2d 455, 457 (Ala.2006), quoting in turn Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004)).

III. Discussion

“ ‘ “In Alabama and most other jurisdictions, the general rule is that attorney's fees and expenses of litigation are not recoverable as damages, in [the] absence of a contractual or statutory duty, other than [by] a few recognized equity principles.” ’ ” ⁴Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138, 152 (Ala.2006) (quoting Ex parte Burnham, Klinefelter, Halsey, Jones & Cater, P.C., 674 So.2d 1287, 1290 (Ala.1995), quoting in turn Highlands Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So.2d 1060, 1065–66 (Ala.1978)). In Handley, this Court held as a matter of first impression that a trial court “has equitable authority to grant a natural mother attorney's fees for successfully defending an attempt by paternal grandparents to gain custody or visitation rights to minor children.” Handley, 460 So.2d at 168. I will first examine Handley, and then I will evaluate it by the common-law rules of equity that this Court is bound by statute to respect. § 1–3–1, Ala.Code 1975 (“The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature.” (emphasis added)).

A. Ex parte Handley

As stated above, Handley stands for the proposition that a trial court has equitable authority to grant a natural mother attorney fees for successfully defending an attempt by grandparents to gain custody of minor children. In Handley, the paternal grandparents sought custody of their grandchildren, claiming that it was not in the children's best interests to remain with the mother. Handley, 460 So.2d at 168. The mother counterclaimed, seeking reasonable attorney fees. The trial court denied the grandparents' request for custody and awarded the mother attorney fees. The Court of Civil Appeals reversed the award of attorney fees to the mother. Id.

On certiorari review, this Court reversed the judgment of the Court of Civil Appeals, holding as a matter of first impression that a trial court has equitable authority to award attorney fees to a mother who has successfully defended against a custody action brought by the grandparents. 460 So.2d at 168, 170. This Court reasoned that such a rule was equitable because “[i]n order to defend her right to the continued custody of her children, which the trial court determined was in their best interest, the mother was completely justified in having counsel to aid her.” 460 So.2d at 169. The Court also cited Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1968), which upheld an award of attorney fees from one spouse to another in a divorce proceeding. The Handley Court reasoned that the award in Brock “did not turn so much on the relationship of the parties as it did on the fact that the mother found it necessary to hire counsel and resort to judicial proceedings to get relief.” 460 So.2d at 170. The four dissenters, however, argued that the Court's reliance on Brock was misplaced and accused the majority of creating a new rule as a policy matter instead of recognizing a rule in equity. 460 So.2d at 170–71 (Torbert, C.J., dissenting, joined by Faulkner, Almon, and Shores, JJ.).

B. The Metes and Bounds of Equitable Power

The question whether a trial court has equitable authority to award a prevailing parent attorney fees from unsuccessful intervening grandparents turns on the true meaning of equity. Sir William Blackstone defined equity in this manner:

“But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed to Herennius. There was a law, that those who in a storm forsook the ship, should forfeit all property therein; and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to it's [sic] preservation.

“From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius, ‘the correction of that, wherein the law (by reason of its universality) is deficient.’ For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to...