Dyer v. Dyer
| Decision Date | 05 October 1983 |
| Docket Number | No. 82-1919,82-1919 |
| Citation | 438 So.2d 954 |
| Parties | Shirley Tillman DYER, Appellant, v. Vaughn DYER, Appellee. |
| Court | Florida District Court of Appeals |
Penny D. Mangus, of McDonough & Beyer, Coral Springs, for appellant.
Philip Michael Cullen, III, Chartered, Fort Lauderdale, for appellee.
The question is whether an attorney's charging lien may be enforced against an award of permanent periodic alimony. We decline to formulate a broad rule, but hold, under the facts of this case, that the trial court abused its discretion by permitting an attorney's charging lien to be impressed upon a permanent periodic alimony award of $250.00 per month.
Shirley Dyer retained attorney James McCauley to represent her in a dissolution action. Subsequently, Mrs. Dyer indicated that she wished to obtain other counsel and, therefore, Mr. McCauley withdrew and filed a claim for an attorney's charging lien in the sum of $5,217.35. Thereafter, Mr. and Mrs. Dyer, both represented by counsel, appeared at the final hearing in the dissolution action and stipulated to a property settlement agreement which divided the parties' real property and other assets. The agreement provided for an award of permanent periodic alimony to Mrs. Dyer in the sum of $250.00 per month and specified that each party would be responsible for his or her own attorney's fees and costs. Since the agreement did not provide for disposition of the charging lien, the trial court retained jurisdiction to determine it at a future date. Later, after a separate hearing, the trial court granted the attorney's request to impress a charging lien on all of the wife's proceeds of the dissolution action. As a result, the wife's real and personal property plus the alimony award were made subject to the lien.
The wife has raised several issues on appeal, most of which cannot be considered due to her failure to provide a transcript of the "lien hearing." See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979). Her threshold contention, however, is that there cannot be a lien because the final judgment of dissolution did not generate any proceeds. She argues that as a result of the property settlement agreement which was incorporated into the final judgment of dissolution, the parties merely divided their jointly-held assets and, therefore, neither party gained anything new. This analysis is too facile. It overlooks the fact that a fundamental purpose of dissolution actions is to achieve an equitable distribution of the parties' assets. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Assuming that all of the requirements for an attorney's charging lien have been alleged and proved, see, e.g., Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik v. Baucom, 428 So.2d 1383 (Fla.1983), we can perceive no logical justification for declining to enforce such liens in dissolution actions. Indeed, Sinclair expressly holds that a charging lien may be pursued in a dissolution action.
The question still remains, however, whether an attorney's charging lien may be enforced against an award of permanent periodic alimony. The parties have not cited, nor have we been able to locate any Florida case law on this point. Moreover, other state authorities are split. See McDonald v. Johnson, 229 Minn. 119, 38 N.W.2d 196 (1949) and the cases cited therein. Some courts have refused to impress charging liens against periodic alimony on the theory that the alimony
is intended for the support of a party to whom it is awarded, its amount is fixed with reference to her necessities, and the courts will not countenance its appropriation to any other purpose.
In re Brown, 178 A.D. 558, 165 N.Y.S. 736, 742 (1917) (quoting Mooney v. Mooney, 29 Misc. 707, 62 N.Y.S. 769 (1899)). The opposite view is exemplified by Hampton v. Hampton, 85 Utah 338, 39 P.2d 703 (1935), where the court held that
[t]o say ... that the lien attaches when the alimony is payable in a lump sum or when specific real or personal property is awarded, but not when alimony is payable in monthly or other designated periods, is to make a judicial distinction without...
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