Crooms v. Whitfield, 50601
| Decision Date | 01 February 1980 |
| Docket Number | No. 50601,50601 |
| Citation | 605 P.2d 592,4 Kan.App.2d 306 |
| Parties | Erikka Lynette CROOMS, a Minor, By and Through Her Mother and Next Friend, Carole CROOMS, Appellee, v. Robert L. WHITFIELD, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The rule of law in Kansas that attorney fees and expenses of a prevailing party in litigation are generally not recoverable applies in the case of an action brought by a minor, through its next friend, to enforce the nonstatutory obligation of the father to support the minor, and therefore attorney fees and expenses are not allowable.
2. The fact that the end result of a nonstatutory paternity action by an illegitimate child to compel support from its father is similar in result to the statutory action provided for by K.S.A. 38-1101 Et seq., does not abrogate the general rule that a clear and specific statutory provision is necessary before attorney fees and expenses may be awarded the successful party.
3. Even though K.S.A. 38-1101 Et seq. authorizes an award of compensation to plaintiff's attorney for his services in a statutory paternity action, it cannot be inferred that the legislature intended that such allowances are permitted in nonstatutory actions of the child for support.
John C. Humpage and John M. Redmon, of Humpage, Berger & Hoffman, Topeka, for appellant.
David L. Skidgel, Topeka, for appellee.
Before ABBOTT, P. J., and SWINEHART and MEYER, JJ.
In this nonstatutory paternity action, defendant appeals from that portion of the trial court's judgment allowing plaintiff attorney fees and expenses.
In this action plaintiff Erikka Lynette Crooms, a minor child born August 18, 1975, through her mother as next friend, asked that defendant Robert L. Whitfield be adjudged her father and liable for child support until she reaches the age of majority. She also sought hospital expenses incident to her birth, attorney fees and expenses.
After trial to the court on April 10 and 11, 1978, the defendant was found to be the natural father of plaintiff. The court further ordered him to pay child support of $58 biweekly, hospital and medical expenses of $426.50, attorney fees and expenses, and court costs of $100. The court's order provided that the amount of attorney fees and expenses due plaintiff's attorney would be determined after the parties submitted memoranda in support of their positions.
On November 3, 1978, the court sustained plaintiff's request for attorney fees, and awarded $1,270 for fees and $2.21 for expenses.
Defendant appeals from the court's order awarding fees and expenses to plaintiff's attorney.
Kansas cases have recognized two distinct proceedings in which the paternity of an illegitimate child may be determined. One proceeding is purely statutory and provides that an unmarried woman may bring a civil action to determine paternity wherein child support and medical expenses incident to birth may be ordered. K.S.A. 38-1101 Et seq. The statutory paternity proceeding allows the court, in its discretion, to award plaintiff reasonable attorney fees. K.S.A. 38-1103. The father of an illegitimate child too young to care for itself is under a nonstatutory obligation to support it and that obligation may be enforced in an action brought by the illegitimate child through its next friend. Doughty v. Engler, 112 Kan. 583, Syl. P 1, 211 P. 619 (1923). This is an alternative type of paternity proceeding to the statutory provisions set forth in K.S.A. 38-1101 Et seq. The child's cause of action under Doughty is not dependent upon the enforcement of the mother's rights under the paternity statute nor subject to the one year statute of limitation contained in K.S.A. 38-1104. Huss v. DeMott, 215 Kan. 450, 451, 524 P.2d 743 (1974); Smith v. Simmons, 4 Kan.App.2d 60, 602 P.2d 546 (1979). The present case is a nonstatutory proceeding and the sole issue presented is whether the trial court erred in awarding p...
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Schuh v. Educational Reading Services of Kansas, Inc.
...re Estate of Hannah, 215 Kan. 892, 529 P.2d 154 (1974); In re Estate of Murdock, 213 Kan. 837, 519 P.2d 108 (1974); Crooms v. Whitfield, 4 Kan.App.2d 306, 605 P.2d 592 (1980)), or by agreement of the parties. Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 518 P.2d 410 (1974). An awa......
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Jones v. Smith, 50722
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