Farley v. Farley

• Citation: 300 N.E.2d 375,157 Ind.App. 385
• Decision Date: 23 August 1973
• Docket Number: No. 472A184,472A184
• Parties: James P. FARLEY, Appellant (Plaintiff-Counter Defendant Below), v. Beverly A. FARLEY, Appellee (Defendant-Counter Claimant Below), v. Norman NEWMAN et al., Appellees (Petitioners for Fees Below).
• Court: Court of Appeals of Indiana

Page 375

300 N.E.2d 375

157 Ind.App. 385

James P. FARLEY, Appellant (Plaintiff-Counter Defendant Below), v. Beverly A. FARLEY, Appellee (Defendant-Counter Claimant Below), v. Norman NEWMAN et al., Appellees (Petitioners for Fees Below).

No. 472A184.

Court of Appeals of Indiana, Second District.

Aug. 23, 1973.

Rehearing Denied Sept. 20, 1973.

Stephen B. Cohen, Chicago, Ill., James R. Nickels, Bulen & Castor, Indianapolis, for appellant.

Ronald S. Lieber, Indianapolis, for appellee Beverly A. Farley.

Dann, Backer, Pecar & Newman, Theodore R. Dann, Indianapolis, for appellees.

SULLIVAN, Judge.

This is an appeal from an order by a special judge for litigation expenses and attorney fees (suit money) against the appellant-plaintiff James Farley (husband) following entry of a divorce decree for appellee-defendant Beverly Farley (wife). The chronology of events are as follows:

February 5, 1970--The husband filed a complaint for divorce against the wife.

May 28, 1971--The attorneys for the wife, appellees (petitioners for fees below) Newman and Dann, and the law firm of Dann, Backer, Pecar & Newman (Newman) filed a petition for withdrawal of appearance pursuant to the wife's request. Included in this petition was a request for suit money.

June 8, 1971--The husband moved to assess the suit money against the wife. Also on this date the wife, who had engaged new attorneys, entered into a property settlement agreement with the husband. June 23, 1971--The property settlement agreement was filed with the court. Thereafter, upon the same date, the court by special judge entered a divorce decree which incorporated the property settlement agreement.

October 22, 1971--The husband filed a memorandum of law in support of the motion he had filed on June 8, 1971.

November 19, 1971--The special judge entered an order for the husband to pay the suit money.

December 1, 1971--The husband filed a motion pursuant to Rule TR. 60, IC 1971, 34--5--1--1, to reconsider the court's order of November 19, 1971.

December 6, 1971--The special judge amended his November 19, 1971 order but again assessed the suit money against the husband.

January 18, 1972--The husband filed a motion to correct errors.

January 20, 1972--The special judge entered an order denying the motion to correct errors.

On appeal the husband argues four allegations of error:

1. The court lacked jurisdiction to enter the amended order of December 6, 1971 because the divorce decree was final on June 23 and suit money cannot be awarded subsequent to a decree of divorce.

2. The court lacked jurisdiction to enter the order of December 6, 1971 because the lapse of time between the final decree and the order deprived the court of subject matter jurisdiction.

3. The special judge lacked jurisdiction to enter the order on December 6, 1971.

4. If the court and judge did have jurisdiction to enter the order of December 6, 1971, then the court abused its discretion in ordering the husband to pay the suit money.

UNDER THE CIRCUMSTANCES OF THIS CASE, THE COURT HAD JURISDICTION TO ENTER ITS ORDER AWARDING ATTORNEY FEES AND LITIGATION EXPENSES AFTER ENTRY OF THE DECREE AWARDING DIVORCE

The husband contends that both the statutory and common law duty of the husband to support his wife terminates upon entry of a final divorce decree, and that because the duty so terminates, any order for suit money must be included in the divorce decree or it is forever barred.

In general, suit money consists of the attorney fees and litigation expenses generated by the wife's attorneys during the divorce proceedings. Yost v. Yost (1895) 141 Ind. 584, 41 N.E. 11.

The rationale which permits the court to require the husband to pay suit money pendente lite is to insure the wife an efficient preparation of her case and a fair and impartial trial. Welling v. Welling (1971), Ind., 272 N.E.2d 598; Brown v. Brown (1945) 223 Ind. 463, 61 N.E.2d 645.

In O'Connor v. O'Connor (1969) 253 Ind. 295, 253 N.E.2d 250, our Supreme Court specifically recognized two jurisdictional bases upon which the husband may be required to pay suit money. The first jurisdictional basis is statutory in origin and is contained in IC 1971, 31--1--12--11, Ind.Ann.Stat. § 3--1216 (Burns 1972 Supp.) which in part provides:

'Pending a petition for divorce, the court, or the judge thereof in vacation, may make, and by attachment enforce, such orders for the disposition of the persons, property and children of the parties as may be deemed right and proper and such orders relative to the expenses of such suit and attorney fees as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof. . . .'

This section of the statute provides for a pendente lite order for attorney fees and litigation expenses. Pendente lite is derived from the phrase 'pending a petition for divorce' and relates to the period of time between the commencement of the action and the rendition of final judgment. Cirtin v. Cirtin (1928) 199 Ind. 737, 164 N.E. 493. Thus, a court may order payment of suit money during the process of litigation but before final judgment.

The statute also contains the following provision:

'And, on decreeing a divorce in favor of the wife or refusing one on the application of the husband, the court shall, by order to be enforced by attachment, require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the petition including a reasonable sum for the services of the attorney representing such wife which sum for attorney fee shall be payable direct to said attorney and the order for same shall be in the name of said attorney, when such divorce has been granted or refused . . ..'

The cases prior to the O'Connor decision interpreted this statutory language to mean that only upon success of the wife in obtaining a divorce or the husband being refused a divorce could suit money be required to be paid by the husband. The rationale underlying these decisions was that suit money was solely a creature of statute and that therefore, with respect to a final decree, an allowance could only be made as specified by the statute.

The O'Connor decision overruled the earlier cases to the extent that they required success upon the part of the wife in a divorce action and held that the only basis upon which an award of suit money would be overturned would be upon a showing of an abuse of discretion.

O'Connor established a second underpinning for the payment of suit money--the common law duty of the husband to support his wife. The court said:

'The only limitation on this approach would seem to be that the order for fees must be included as a part of the final Decree, since once the decree becomes final, it would appear that all obligations relative to the common law duty to support cease except as specified by the decree itself.' 253 N.E.2d at 254 (emphasis supplied)

O'Connor would then indicate that neither the statute nor the common law would allow courts to assess suit money after entry of a final divorce decree, unless the decree itself specifies otherwise.

We will assume arguendo for the purposes of our immediate consideration that the husband is correct and that the divorce decree as entered June 23, 1971 was a final decree. ¹ In order to determine whether the suit money issue was resolved by the June 23 decree, we must took to the decree itself which states insofar as pertinent:

'IT IS THEREFORE, CONSIDERED, ADJUDGED AND DECREED BY THE COURT that:

1. The bonds of matrimony heretofore existing between the parties hereto be and the same are hereby wholly dissolved and held for naught;

2. The cross-plaintiff and defendant, Beverly A. Farley, be and she is hereby granted an absolute divorce from the plaintiff and cross-defendant James P. Farley;

3. That the divorce settlement agreement including but not limited to terms relating to child support, visitation of minor children, lump sum alimony settlement, division of personal property and payment of marital debts signed in open court on the ninth day of June, 1971 is hereby approved and incorporated herein as part of this judgment and decree as though fully set forth herein in the words and phrases as follows: * * *' (Emphasis supplied)

Although the decree does not make a determination with respect to the issue of suit money, it does incorporate by reference the property settlement agreement, which contains the following language:

'It is acknowledged that the law firm of Dann, Backer, Pecar and Newman shall make a claim with the Court for attorneys' fees, and the parties agree to abide by the decision of the Court in awarding any attorneys' fees to Denn, Backer, Pecar and Newman.' (emphasis supplied)

According to the language contained in the settlement agreement the parties agreed to abide by a decision of the court. This language did not bind either party to pay suit money until that decision of the court was made. In Indiana the husband does not bear an absolute duty to pay the legal fees generated by his wife in a divorce action and as earlier noted the court has discretion whether to assess fees against the husband. State ex rel. DeArmond v. Superior Court (1940) 216 Ind. 641, 25 N.E.2d 642; Becker v. Becker (1966) 141 Ind.App. 562, 216 N.E.2d 849. It was therefore conceivable that the trial court, in its discretion, could decide that the wife should not be awarded attorney fees and litigation expenses.

The settlement agreement did not resolve the issue but left the matter for future determination by the trial court.

O'Connor states that the common law and statutory duties cease upon entry of the final judgment except such as are specified by the decree itself. Appellees Newman contend that the court 'reserved' the issue of suit money at the time the divorce decree was entered. The specific language which Newman refers to is found in the portion of the June 23 'Decree and Judgment for Divorce' which...