Fuqua v. Fuqua

• Decision Date: 07 January 1977
• Docket Number: No. 44362,44362
• Citation: 558 P.2d 801,88 Wn.2d 100
• Parties: Brudijean FUQUA, Plaintiff, The State of Washington, Respondent, v. Raymond L. FUQUA, Defendant, Ronald W. Meier, Appellant. Karen Elizabeth KAUR, also known as Karen Elizabeth Voogd, Plaintiff, The State of Washington, Respondent, v. Charanjit Singh CHAWLA, Defendant, Ronald W. Meier, Appellant.
• Court: Washington Supreme Court

Page 100

88 Wn.2d 100

558 P.2d 801

Brudijean FUQUA, Plaintiff, The State of Washington, Respondent, v. Raymond L. FUQUA, Defendant, Ronald W. Meier, Appellant.

Karen Elizabeth KAUR, also known as Karen Elizabeth Voogd, Plaintiff, The State of Washington, Respondent, v. Charanjit Singh CHAWLA, Defendant, Ronald W. Meier, Appellant.

No. 44362.

Supreme Court of Washington, En Banc.

Jan. 7, 1977.

Ronald W. Meier pro se.

Christopher T. Bayley, Pros. Atty., Kenneth A. Lee, Sr. Deputy Pros. Atty., Bothell, for respondent.

UTTER, Associate Justice.

Ronald Meier, an attorney and appellant herein, appeals from an order of the superior court quashing liens for his attorney's fees filed in each of the two cases which are the subject of this appeal.

Appellant secured a decree of divorce for Mrs. Brudijean Fuqua on July 17, 1963. The decree awarded her custody of the parties' four minor children and directed Mr. Fuqua to pay Mrs. Fuqua $80 per month per child for their support and $80 per month alimony. A substantial arrearage accumulated and Mrs. Fuqua retained other counsel who instituted contempt proceedings against Mr. Fuqua. Both parties then petitioned for modification of the original decree. At this point, appellant once again was retained by Mrs. Fuqua. The court, in an order entered August 27, 1975, fixed the amount of combined arrearages for alimony and child support at $5,080 plus interest, eliminated the alimony provision and established support payments of $100 per child for the unemancipated children. Mr. Fuqua was also ordered to pay Mrs. Fuqua $500 'to apply upon her attorney's fees.' The arrearages were subsequently paid into the registry of the court. Appellant filed a notice of attorney's lien in the Fuqua case in the amount of $3,465.43 'to the extent of unpaid alimony.'

In Kaur v. Chawla, 11 Wash.App. 362, 522 P.2d 1198 (1974), appellant successfully represented Karen Kaur in a private action to establish paternity of the child born to her and to obtain support for that child. Paternity was established and judgment for $2,000 past support and $75 per month current support was entered, to be paid into the registry of the court. On the same date this judgment was entered, appellant filed a notice of attorney's lien in the Kaur case for $1,000 against the judgment for past support and $37.50 per month as applied to current support payments.

On October 22, 1975, the King County Prosecuting Attorney, on behalf of the state, filed a motion to quash the lien in each case. Thereafter the state was made an additional party plaintiff and appellant an additional party defendant in each case. These consolidated cases present three issues for our consideration: Does a prosecuting attorney have authority to appear on behalf of the state for the purpose of resisting action which might violate the right of children to support, absent a court order or direct request by one of the named parties authorizing him to do so; was the prosecutor's intervention in these particular cases properly accomplished; and was the order of the trial court, directing that these liens be quashed, a proper decision on the merits.

The authority of the prosecuting attorney to appear in actions which present issues concerning county officials and their operation of county departments has been broadly construed in this state.

In this state the prosecuting attorney is also the county attorney, and the relations of that officer to the county may be such as possibly require him to appear in behalf of the county in some instances, even if the specific duty may not be particularly and expressly prescribed by statute. If so, the duty arises out of the obligations he has assumed as an officer of the county to discharge the general functions of an attorney in (its) behalf.

Bates v. School Dist. 10, 45 Wash. 498, 501--02, 88 P. 944, 945 (1907); In re Lewis, 51 Wash.2d 193, 316 P.2d 907 (1957).

Several statutes relate to the duties of the prosecuting attorney. His general duties are described in RCW 36.27.020. ¹ He has, as well, been given express authority to represent the broad interest of the state in cases involving support of minor children. ² Where, as here, support or maintenance funds are paid to the Clerk of the Superior Court, RCW 26.09.120(2) (c) provides:

The clerk of the court shall, if the party fails to make required payment, send by first class mail notice of the arrearage to the obligor. If payment of the sum due is not made to the clerk of the court within ten days after sending notice, the clerk of the court shall certify the amount due to the prosecuting attorney.

This provision directly involves the clerk with the prosecuting attorney when funds ordered to be paid for support become delinquent. In addition, express statutory authority is found compelling the prosecuting attorney to act as legal advisor to all county officers, RCW 36.27.020(2) and (3), and to appear and represent the state and county in all civil actions where they 'may be a party.'

Our case law and statutes support the conclusion that either the clerk of the court or the state may appear through its legal representatives as an interested party in legal actions involving the payment of support monies into the registry of the court. It is proper for the prosecutor, as counsel for an interested party, to appear and represent the interests of the clerk in seeking a lawful distribution of funds paid into the clerk's office. Moreover, our court has traditionally taken a broad view of the state's interest in dissolutions in general, and in particular those involving the welfare of minor children. We have stated on several occasions that the state is an 'interested party' in all such proceedings.

(D)ivorce actions and proceedings ancillary thereto are not adversary in the customary sense, for the state is an interested party. In effect, such proceedings involve three parties: the plaintiff, the defendant, and the state. Where minor children are involved, the state's interest is that, in so far as is possible, provision shall be made for their support, education, and training, to the end that they may grow up to be worthy and useful citizens.

Corson v. Corson, 46 Wash.2d 611, 615, 283 P.2d 673, 676 (1955). See State v. Bowen, 80 Wash.2d 808, 498 P.2d 877 (1972); In re Lewis, supra. Therefore, although not expressly authorized by specific language of any statute to appear in this precise form of action, we conclude that the prosecutor had standing as the proper representative of both the state and its officer, the county clerk, to move to quash these liens. ³

Appellant's contention that the prosecutor's intervention was not accomplished in compliance with CR 24 is without merit. As the representative of a real party in interest, the prosecuting attorney was entitled to intervene as a matter of right. CR 24(a)(2). Any procedural objection appellant might have had to the action of the prosecutor was waived when he failed to object, on procedural grounds, to the entry of the order adding additional parties to the actions. Generally, issues not raised before the trial court will not be considered on appeal. Appellant's other contentions with regard to CR 24 do not fall within the limited exceptions to this rule. In re Richard, 75 Wash.2d 208, 449 P.2d 809 (1969). Upon entry of the order adding additional parties, the trial court had before it all parties necessary to a determination of the validity of appellant's liens and thus had jurisdiction to make a determination on the merits. See State ex rel. Arthur v. Superior Court, 58 Wash. 97, 107 P. 876 (1910).

Appellant, in his argument for reversal of the order quashing these liens, cites the broad language of RCW 60.40.010, which provides,

An attorney has a lien for his compensation, whether especially agreed upon or implied, as hereinafter provided: . . . (4) upon a judgment to the extent of the value of any services performed by him in the action, or if the services were rendered under a special agreement, for the sum due under such agreement, from the time of filing notice of such lien or claim with the clerk of the court in which such judgment is entered, which notice must be filed with the papers in the action in which such judgment was rendered, and an entry made in the execution docket, showing name of claimant, amount claimed and date of filing notice.

We have not previously had occasion to consider whether such a lien may be filed against a judgment for child support or separate maintenance. A child's custodian receives support money as a trustee and not in his or her own right. Ditmar v. Ditmar, 48 Wash.2d 373, 293 P.2d 759 (1956); Roberts v. Roberts, 69 Wash.2d 863, 420 P.2d 864 (1966). The trial court concluded that the compensation owed appellant was the debt of the custodian and not the children and therefore refused to allow assertion of a lien for that debt against funds paid into the court for child support. It held that funds in the possession of the clerk or the custodian of the children were held by them solely as trustees. The trial court further found the combined lump-sum award for alimony and child support granted in Fuqua was not readily severable and, because it involved commingled child support and alimony, declined to allow the assertion of a lien against any portion of that sum.

A majority of the courts of other jurisdictions have declared attorney's liens filed against funds representing either child support or alimony to be invalid. Generally speaking, these decisions have been based upon considerations of public policy. See, e.g., Hubbard v. Ellithorpe, 135 Iowa 259, 112 N.W. 796 (1907); Indell v. Tabor, 185 N.Y.S. 873 (Sup.Ct.S.T.1920); Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927); Bucknam v. Bucknam, 347 Mo. 1039, 151 S.W.2d 1097 (1941). A few courts have allowed the imposition of a lien where lump-sum alimony has been awarded in lieu of a property division, ...