Davis v. Rahkonen, 82-1089

• Decision Date: 25 March 1983
• Docket Number: No. 82-1089,82-1089
• Citation: 112 Wis.2d 385,332 N.W.2d 855
• Parties: In the Matter of Attorney's Fees in re the Marriage of Maren Rahkonen and David L. Rahkonen: J.M. DAVIS, Appellant, v. David L. RAHKONEN, Respondent. *
• Court: Wisconsin Court of Appeals

Page 855

332 N.W.2d 855

112 Wis.2d 385

In the Matter of Attorney's Fees in re the Marriage of Maren

Rahkonen and David L. Rahkonen:

J.M. DAVIS, Appellant, v. David L. RAHKONEN, Respondent. ^*

No. 82-1089.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 4, 1983.

Opinion Released March 25, 1983.

Opinion Filed March 25, 1983.

J.M. Davis of Phillips & Davis, Waukesha, for appellant; Steven J. Steinhoff, Waukesha, of counsel.

Frank W. Bastian of Lichtsinn, Haensel, Bastian & Erchul, S.C., Milwaukee, for respondent.

Before VOSS, P.J., and BROWN and SCOTT, JJ.

SCOTT, Judge.

Attorney J.M. Davis appeals from that part of a divorce petition dismissal that denied him an award of attorney fees. The issue is whether the death of a party to a pending divorce action deprives the circuit court of jurisdiction to award a judgment for attorney fees pursuant to sec. 767.23(3), Stats. Because we conclude that an award of attorney fees is in accord with the legislative intent of sec. 767.23(3), we reverse.

On June 9, 1980, Maren Rahkonen petitioned for a divorce from David Rahkonen. Attorney J.M. Davis prepared Mrs. Rahkonen's petition and subsequently represented her at four hearings concerning temporary child support. Davis also prepared all of the documents necessary for a pretrial hearing on the divorce. On November 24, 1981, while the divorce was still pending, Mrs. Rahkonen died.

Davis moved the trial court to dismiss Mrs. Rahkonen's divorce petition and to award him attorney fees of $1,576.50. The trial court dismissed the divorce action. In addition, it found that the probate court had granted Mr. Rahkonen a summary settlement of Mrs. Rahkonen's estate. The court further found that the fees Davis requested were reasonable and that it would be inequitable to permit Davis' right as a creditor of Mrs. Rahkonen to be cut off by summary settlement of her estate. Accordingly, the court granted Davis a judgment of $1,576.50 against Mr. Rahkonen. On reconsideration, the court set aside Davis' judgment for attorney fees. It is from the amended judgment that Davis appeals.

Under sec. 767.01(1), Stats., circuit courts have jurisdiction of "all actions affecting the family and have authority to do all acts and things necessary and proper in such actions...." Section 767.23(3), Stats., provides in part:

Upon making any order for dismissal of an action affecting the family ..., the court shall prior to or in its order render and grant separate judgment in favor of any attorney who has appeared for a party to the action ... for the amount of fees and disbursements to which the attorney ... is, in the court's judgment, entitled and against the party responsible therefor.

Section 767.262, Stats., authorizes the court to order

either party to pay a reasonable amount for the cost to the other party of maintaining or responding to an action affecting the family and for attorney's fees to either party, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.

The parties agree that under the common law when one party to a divorce proceeding dies during the pendency of the action, the cause of action abates, and the court is without jurisdiction to award attorney fees. See, e.g., Hogsett v. Hogsett, 409 S.W.2d 232, 237-38 (Mo.Ct.App.1966). The question before us is whether the legislature intended to contravene the common law when it provided that "upon making any order for dismissal," the trial court "shall" grant judgment for reasonable services to any attorney who has appeared for a party to the action. Sec. 767.23(3), Stats. (Emphasis added.) We conclude that the legislature did intend to authorize an award of fees in the instant circumstances.

In construing a statute, the primary source is the language of the statute itself. County of Milwaukee v. Proegler, 95 Wis.2d 614, 625, 291 N.W.2d 608, 613 (Ct.App.1980). In determining the meaning of any single word, it is necessary to examine the word in the light of the entire statute. Id. A statute in derogation of the common law must be strictly construed so as to have...