Fisher v. Fisher

• Decision Date: 27 March 2003
• Docket Number: No. 20010771-CA.,20010771-CA.
• Citation: 67 P.3d 1055,2003 UT App 91
• Parties: Steven FISHER, Petitioner, v. Nanette FISHER, Respondent. State of Utah, Office of Recovery Services, Appellant and Cross-Appellee, v. M. Dirk Eastmond, Appellee and Cross-Appellant.
• Court: Utah Court of Appeals

67 P.3d 1055

2003 UT App 91

Steven FISHER, Petitioner, v. Nanette FISHER, Respondent.

State of Utah, Office of Recovery Services, Appellant and Cross-Appellee, v. M. Dirk Eastmond, Appellee and Cross-Appellant.

No. 20010771-CA.

Court of Appeals of Utah.

March 27, 2003.

Karma K. Dixon, Assistant Attorney General, Salt Lake City, for Appellant.

M. Dirk Eastmond, Sandy, Appellee pro se.

Before Judges BENCH, GREENWOOD, and THORNE.

OPINION

THORNE, Judge.

¶ 1 The State of Utah Office of Recovery Services (ORS) appeals from an order granting M. Dirk Eastmond an attorney lien against past-due child support payments collected by ORS on behalf of Eastmond's former client, Nanette Fisher (Wife). Eastmond cross appeals that portion of the trial court's order that prevents the lien from attaching to future child support payments. We reverse in part and dismiss in part.

BACKGROUND

¶ 2 In August 1999, Wife retained Eastmond to represent her in a divorce action. Eastmond obtained a judgment for all past-due child support and an award of future child support payments. In December 1999, Wife opened a case with ORS seeking enforcement of this child support order. After ORS located Wife's ex-husband and garnished his wages, Eastmond filed a notice of attorney lien in the underlying divorce action seeking to attach the funds collected by ORS. ORS intervened in the underlying divorce action and filed a motion to quash the attorney lien.¹

¶ 3 The court commissioner assigned to the case recommended that ORS's motion to quash be granted. Eastmond objected and the matter was scheduled for hearing. At the hearing, the district court rejected in part and accepted in part the commissioner's recommendation to quash Eastmond's lien. The court found that Eastmond could assert his lien against the past-due child support collected by ORS but not against future child support payments.²

¶ 4 At this hearing, Eastmond also entered an appearance on behalf of Wife. The court informed Eastmond that his interest was adverse to that of Wife, and told Eastmond that he could not represent her. Later in the hearing, Eastmond moved to withdraw as Wife's attorney.

¶ 5 After the court ruled, Eastmond questioned the court about the procedure for appealing the ruling, indicating that he was in "no position to appeal." Eastmond asked the court to separate the attorney lien from the underlying divorce action, but his request was denied. In its written order, the court allowed Eastmond to withdraw as Wife's attorney and allowed Eastmond "to continue as a Party-in-Interest in this matter for the purpose of any further proceeding on the issues relating to his attorney[ ] lien, including any appeal, and it is not necessary to bifurcate the proceeding or assign a miscellaneous case number, as counsel suggests."

¶ 6 Both ORS and Eastmond appeal.

ISSUES AND STANDARD OF REVIEW

¶ 7 ORS argues that the trial court erred in allowing Eastmond to attach his attorney lien to funds collected by ORS. Eastmond cross appeals, arguing that the trial court erred in limiting his attorney lien to past-due child support payments. Both issues are resolved by reference to Utah statutes and this court's interpretation of those statutes. "`Matters of statutory construction are questions of law that are reviewed for correctness.'" In re D.B., 2002 UT App 314, ¶ 6, 57 P.3d 1102 (quoting Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997)).

ANALYSIS

I. Past-Due Child Support

¶ 8 ORS argues the trial court erred in allowing Eastmond's attorney lien to attach to past-due child support payments. Resolution of this question requires that we examine the attorney lien statute, the statutes that created ORS, and the statutes that apply generally to governmental entities.

¶ 9 Eastmond filed his attorney lien pursuant to the attorney lien statute, Utah Code Ann. § 78-51-41 (2000), which provides:

The compensation of an attorney and counselor for services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action, or the service of an answer containing a counterclaim or at the time that the attorney and client enter into a written or oral employment agreement, the attorney who is so employed has a lien upon the client's cause of action or counterclaim, which attaches to any settlement, verdict, report, decision, or judgment in the client's favor and to the proceeds thereof in whosoever hands they may come, and cannot be affected by any settlement between the parties before or after judgment. Any written employment agreement shall contain a statement that the attorney has a lien upon the client's cause of action or counterclaim.

Utah Code Ann. § 78-51-41 (2000)(emphasis added.)³

¶ 10 Utah Code Ann. § 62A-11-102 (2000) creates "within the Department [of Human Services] the Office of Recovery Services." Pursuant to Utah Code Ann. § 62A-11-104 (Supp.2002), this department has the power and duty

(1) to provide child support services if:

(a) the office has received an application for child support services;

(b) the state has provided public assistance; or

(c) a child lives out of the home in the protective custody, temporary custody, or custody or care of the state or another party for at least 30 days.

....

(7) to implement income withholding for collection of child support in accordance with Part 4 of this chapter;

....

(9) to establish and maintain the state case registry in the manner required by the Social Security Act, 42 U.S.C. [§ ] 654a....

Id. Pursuant to Utah Code Ann. § 62A-11-106 (2000), ORS "may file judicial proceedings as a real party in interest to establish, modify, and enforce a support order in the name of the state, any department of the state, [ORS], or an obligee." (Emphasis added.) Finally, Utah Code Ann. § 63-30-22(2) (1997) provides that "[e]xecution, attachment, or garnishment may not issue against a governmental entity."

¶ 11 This court has long held that "`[w]hen interpreting statutes, our primary goal is to evince the "true intent and purpose of the Legislature."'" Lovendahl v. Jordan Sch. Dist., 2002 UT 130, ¶ 20, 63 P.3d 705 (citation and quotations omitted); see also id. at ¶ 21 ("When interpreting statutes, we determine the statute's meaning by first looking to the statute's plain language, and give effect to the plain language unless the language is ambiguous." (citation and quotations omitted)). ¶ 12 Utah Code Ann. § 78-51-41 allows attorneys to contract with clients for payment of attorney fees and allows attorneys to file liens against clients' claims or counterclaims. However, pursuant to the plain language of section 78-51-41, the parties cannot provide by contract for payment that is "restrained by law." Utah Code Ann. § 78-51-41.

¶ 13 Utah Code Ann. § 63-30-22(2) plainly provides that "[e]xecution, attachment, or garnishment may not issue against a governmental entity." We view section 63-30-22 to be a "restrain[t] of law" as the phrase is used in section 78-51-41. Utah Code Ann. § 78-51-41. The restrictions imposed by section 63-30-22 cannot be ignored or contracted away. See Utah Code Ann. § 78-51-41. Thus, liens of any kind, even those liens created pursuant to section 78-51-41, may not attach against a governmental entity.

¶ 14 After reviewing the plain language of sections 62A-11-102 and 62A-11-104 to -106, we conclude that ORS is a governmental entity as the term is used in section 63-30-22(2). See Utah Dep't of Soc. Servs. v. Adams, 806 P.2d 1193, 1195 n. 2 (Utah Ct. App.1991) (noting ORS is "an enforcement arm of the Department of Social Services"). When Wife sought the assistance of ORS to enforce the child support order, ORS stood in her place and collected child support payments on her behalf. Consequently, the funds Eastmond seeks to attach are in the possession and control of ORS, a governmental agency that is immune from execution, attachment, or garnishment. See Utah Code Ann. § 63-30-22(2). As such, Eastmond's lien cannot attach to funds in ORS's control.⁴

II. Future Child Support Payments

¶ 15 Before addressing Eastmond's cross appeal asserting that he should have been granted a lien on ongoing child support, we must first determine whether the trial court was vested with subject matter jurisdiction over his claim.⁵ "[Q]uestions regarding subject matter jurisdiction may be raised at any time because such issues determine whether a court has authority to address the merits of a particular case." Housing Auth. v. Snyder, 2002 UT 28, ¶ 11, 44 P.3d 724. "[S]ubject matter jurisdiction is an issue that can and should be addressed sua sponte when jurisdiction is questionable." Petersen v. Utah Bd. of Pardons, 907 P.2d 1148, 1151 (Utah 1995). "Further, because it is a threshold issue, we address jurisdictional questions before resolving other claims." Snyder, 2002 UT 28 at ¶ 11, 44 P.3d 724.

¶ 16 An attorney seeking to enforce a lien must either bring a separate action to enforce his attorney lien or intervene in the underlying suit prior to judgment being entered. See Ostler v. Buhler, 1999 UT 99, ¶ 5 n. 3, 989 P.2d 1073 (noting that absent "`special circumstances'" attorney liens should be enforced in a separate action (citation omitted)); Albrechtsen v. Albrechtsen, 18 Utah 2d 55, 414 P.2d 970, 971 (1966) (finding that attorney who did not intervene in underlying suit had no standing to appeal denial of garnishment). There being no question that Eastmond did not file a separate action to enforce his attorney lien, we focus our analysis on whether Eastmond properly intervened in the underlying action.

¶ 17 In Ostler, an attorney filed a lien to collect his fees from the proceeds of a settlement. 1999 UT 99 at ¶ 2, 989 P.2d 1073. The attorney moved to have the proceeds deposited with the court and then requested the court pay him directly. See id. at ¶¶ 2, 3. The client did not respond to these motions, and they were granted. See id. at ¶ 3. The client...