Bucknam v. Bucknam

• Decision Date: 10 June 1941
• Docket Number: 37505,37421
• Parties: Theresa R. Bucknam, Appellant-Respondent, v. Robert H. Bucknam, Defendant, Francis C. Downey, Respondent-Appellant
• Court: Missouri Supreme Court

151 S.W.2d 1097

347 Mo. 1039

Theresa R. Bucknam, Appellant-Respondent, v. Robert H. Bucknam, Defendant, Francis C. Downey, Respondent-Appellant

Nos. 37505, 37421

Supreme Court of Missouri

June 10, 1941

Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Special Judge.

Reversed to be modified.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for Theresa R. Buchnam.

(1) The trial court was without jurisdiction to modify the final decree so as to allow attorney's fees at a later term of court, when no motion seeking such relief was filed during the term at which said decree was entered. State ex rel Maple v. Mulloy, 322 Mo. 281, 15 S.W.2d 812; 4 C. J. S. p. 189; Bovard v. Bovard, 233 Mo.App. 1019, 128 S.W.2d 276; Watkins v. Watkins, 66 Mo.App. 471; Drennan v. Drennan, 104 S.W.2d 691; Beckler v. Beckler, 227 Mo.App. 761, 57 S.W.2d 689; Arnold v. Arnold, 222 S.W. 1001; Marshall v. Marshall, 236 S.W. 379; Friedman v. Friedman, 269 P. 259; Coons v. Coons, 236 S.W. 364; Albrecht v. Albrecht, 269 P. 161, 83 Mont. 37; Goodman v. Goodman, 105 P.2d 1095; Carlton v. Carlton, 65 P.2d 1417; State ex rel. Scott v. Harris, 136 S.W.2d 80. (2) It is the duty of the court to supervise the fees paid to counsel representing the wife and minor child. State ex rel. Couplin v. Hostetter, 344 Mo. 770, 129 S.W.2d 5; North v. North, 339 Mo. 1226, 100 S.W.2d 587; Dickey v. Dickey, 132 S.W.2d 1031; Gray v. Clements, 296 Mo. 497, 246 S.W. 942. (3) Alimony and support money for minor children are not subject to appropriation for attorney's fees, and an attorney's lien may not be impressed thereon. Hilleary v. Hilleary, 189 Mo.App. 704, 175 S.W. 283; Sanner v. Sanner, 46 S.W.2d 937; Dougherty v. Burger, 133 Misc. 807, 234 N.Y.S. 275; In re Brown, 165 N.Y.S. 742; Indell v. Tabor, 185 N.Y.S. 874; Branth v. Branth, 10 N.Y.S. 639; Creasey v. Creasey, 175 Mo.App. 237, 157 S.W. 864.

Hugh B. Downey and Maurice J. O'Sullivan for Francis C. Downey; J. Francis O'Sullivan and John M. P. Miller of counsel.

(1) The court erred in denying movant attorney, a lien for $ 8281.04 as agreed compensation upon the consideration paid under a court approved contract of property settlement made by plaintiff and her former husband, where movant was employed after the divorce. Jones v. Jones, 333 Mo. 478, 63 S.W.2d 152; North v. North, 339 Mo. 1226, 100 S.W.2d 587; Turpin v. Turpin, 128 S.W.2d 279; Tilles v. Commissioner, 113 F.2d 907; Hubbard v. Ellithorpe, 135 Iowa 259, 112 N.W. 786; Bovard v. Bovard, 233 Mo.App. 1019, 128 S.W.2d 274; Dickey v. Dickey, 141 A. 387, 58 A. L. R. 636. (2) The circuit court has jurisdiction of the proceeding before it to ascertain the amount due movant and to declare it a lien on the fund held by the clerk. (a) The court had jurisdiction to determine the issues. State ex rel. Anderson v. Roehrig, 320 Mo. 1001, 8 S.W.2d 998; United States ex rel. v. Lufcy, 329 Mo. 1224, 49 S.W.2d 14; Palmer v. Warren, 108 F.2d 166. (3) Contingent compensation under the facts did not contravent sound public policy. Draughton v. Fox-Pelletier Co., 126 S.W.2d 333; Just v. Chambers, 85 L.Ed. 572; McGowen v. Parish, 237 U.S. 287, 59 L.Ed. 959; Schempp v. Davis, 201 Mo.App. 430, 211 S.W. 730; Weigani v. Alliance Supply Co., 44 Va. 133, 28 S.E. 803; Young v. Levine, 326 Mo. 593, 31 S.W.2d 980.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

On March 14, 1934, Theresa R. Bucknam, plaintiff nisi and for convenience sometimes designated appellant here, obtained a divorce from Robert H. Bucknam, in Jackson County, Missouri. The decree awarded her the custody of their minor son, David Horton Bucknam, born February 19, 1933, $ 150 monthly alimony and $ 50 monthly maintenance for the son. She, experiencing difficulty in collecting the alimony and maintenance, in the latter part of 1934 employed Francis C. Downey, an attorney, movant nisi and for convenience so designated, to collect said alimony and maintenance. On June 10, 1939, a contract of settlement was effected between said Theresa and Robert H., Robert H. agreeing, among other things, to pay $ 10,000 to Theresa. Mr. Downey filed a motion seeking to charge the $ 10,000 with the payment of his fee. The court, on a quantum meruit basis, allocated to him $ 5,000 of said $ 10,000. Mrs. Bucknam contends Mr. Downey is not entitled to charge any fee against said $ 10,000. Mr. Downey contends for a charge of $ 8,281.04. Each has appealed from the judgment nisi.

Mr. and Mrs. Robert H. Bucknam were married February 12, 1929, in Massachusetts. Thereafter, Robert H. became the beneficiary of a spendthrift trust, administered in Boston, Massachusetts, created by his mother's will and, under its provisions, was to receive the corpus of the trust estate on December 20, 1939. He married a second wife soon after the divorce of March 14, 1934. We shall not detail the efforts of Mr. Downey to collect. From the record, his services continued until the consummation of the contract of June 10, 1939, and included investigations of the laws of Massachusetts, Connecticut, Florida and Missouri. Among other efforts, was an unsuccessful attempt to subject the spendthrift trust to the payment of Theresa's claims. [Bucknam v. Bucknam, 294 Mass. 214, 200 N.E. 918, 104 A. L. R. 774.] In 1938, Robert H. Bucknam and his second wife resided in Kansas City. On or about February 26, 1938, Mr. Downey caused a summons in garnishment to be served on the Plaza Bank of Commerce, of Kansas City, Missouri, and instituted proceedings seeking the modification of certain provisions of the original decree of divorce. On March 5, 1938, the original judgment was modified with respect to the $ 150 monthly alimony. The modification was, briefly, to the following effect: In lieu of the continuance of said periodical alimony, Theresa was awarded the gross sum of $ 40,000, and the same was decreed a lien against the corpus of said spendthrift trust estate eo instante upon the passing of the title from the trustees to Robert H. Robert H. was ordered to post a $ 50,000 bond to secure the payment of said alimony and forbidden and enjoined from departing from Jackson County, Missouri, until further order of the court.

Thereafter, said Theresa and Robert H. undertook to adjust their financial differences by the contract of June 10, 1939, which, in so far as deemed material, we outline in brief. This contract was contingent upon Robert H. attaining the age of 30 years; that is, being alive on December 20, 1939, and receiving the corpus of the aforementioned trust estate. Upon the performance of the covenants thereof by Robert H., Theresa, among other things, was to satisfy of record the judgments for alimony and maintenance. Robert H. agreed to pay Theresa $ 10,000 on or before December 20, 1939, and she was to receive $ 1,270.09 of certain moneys on deposit with the Plaza Bank of Commerce, and Robert H. was to establish a $ 15,000 trust estate for the use and benefit of their son David Horton Bucknam, the material details of which are more fully stated hereinafter.

The contract explicitly provided, in part: "8. Said Theresa may, if she shall so desire, after making payment of her counsel fees and other legal expenses from and out of the sum of Ten Thousand ($ 10,000) Dollars, to her to be paid by said Robert as hereinabove provided, pay over to the Trustees of the David Horton Bucknam trust" any portion of said $ 10,000 remaining in her hands; and as we read paragraph "17" thereof, she released Robert H. from any possible liability for said fee.

On November 22, 1939, the same being the ninth day of the November, 1939, term of court, the Circuit Court of Jackson County upon findings that said contract of June 10, 1939, was voluntarily and legally entered into and executed by the parties thereto; that appellant had received the $ 1,270.09 mentioned in said contract; and that said contract was fair and just, entered an order approving said contract, ordered that the judgment of $ 50 monthly for the maintenance of David Horton Bucknam be vacated, set aside and for naught held upon the establishment of the $ 15,000 David Horton Bucknam trust; ordered that Robert H. stand discharged of all obligations to Theresa for alimony and that Theresa satisfy of record the judgments theretofore entered awarding periodical and gross alimony "upon the payment to the plaintiff, or payment into this court for the benefit of plaintiff" of $ 10,000, the court retaining jurisdiction to make such additional orders and decrees as might be necessary to effectuate said contract of June 10, 1939.

As indicated, Robert H. Bucknam was not entitled to receive the corpus of the trust estate established by his mother until December 20, 1939. Thereafter, on January 12, 1940, the same being the fifth day of the January, 1940, term, the court, upon findings that said Robert H. had fully performed his covenants of the contract of June 10, 1939, and upon the further explicit finding "that the parties to this cause have agreed and consented to this order," ordered that the orders contingent upon Robert H.'s performance in the order of November 22, 1939, be effectuated and also explicitly provided: "It is further ordered, adjudged and decreed that the clerk of this court shall retain in his possession the said sum of Ten Thousand Dollars ($ 10,000), heretofore deposited with him by the defendant for and on behalf of the plaintiff, until the further orders of this court." On said January 12, 1940, the prior orders, judgments and decrees were satisfied of record on behalf of appellant. On January 16, 1940, Mr. Downey filed his original motion, an amendment thereof being under review here.

Mrs Bucknam asserts that the final decree for alimony was entered in the November, 1939, term...