Harmon v. Harmon

• Decision Date: 20 September 1983
• Docket Number: 56279,Nos. 55660,s. 55660
• Citation: 1983 OK 89,770 P.2d 1
• Parties: Harvey L. HARMON, Sr., Appellant, v. Dorothy R. HARMON, Appellee.
• Court: Oklahoma Supreme Court

Page 1

770 P.2d 1

1983 OK 89

Harvey L. HARMON, Sr., Appellant, v. Dorothy R. HARMON, Appellee.

Nos. 55660, 56279.

Supreme Court of Oklahoma.

Sept. 20, 1983.

Rehearing Denied July 19, 1988.

Action brought in district court by Harvey Harmon, Sr. against Dorothy Harmon for decree of divorce. The District Court of Oklahoma County, Honorable Charlie Y. Wier, Trial Judge, entered decree of divorce including a division of jointly acquired property, support alimony and attorney fees. Harvey Harmon appealed to the Supreme Court which assigned the cause to the Court of Appeals, Division No. 2, for opinion. The Court of Appeals modified the decision. Dorothy Harmon applied for certiorari.

Decision of Court of Appeals Withdrawn; Judgment of the Trial Court Affirmed.

Michale J. Tullius, Fagg, Brandon & Tullius, Oklahoma City, for appellant.

James W. Bill Berry & Associates, James W. Bill Berry, Oklahoma City, for appellee.

LAVENDER, Justice:

Husband/appellant appeals from a judgment of the trial court entered in a divorce proceeding and thereafter filed a separate appeal from an award of attorney fees to wife/appellee entered subsequent to the entry of the original decree. The two appeals were consolidated. The cause was assigned to the Court of Appeals, Division 2, for the rendering of an opinion. Wife filed a petition for certiorari, and certiorari was previously granted by this Court. We now consider the various specifications of error postulated by husband.

I.

JURISDICTION OF THE TRIAL COURT TO AWARD ATTORNEY FEES TO WIFE FOR PRE-APPEAL LEGAL SERVICES.

Husband/appellant alleges that the trial court was without jurisdiction to award attorney fees to the wife after the initial formal divorce decree was entered in the cause, where that journal entry of judgment was silent as to attorney fees and failed to reserve the issue of attorney fees for future determination.

The case was tried on June 18, 1980. During the course of the trial, wife's attorney stated in open court: "Judge, I have been reminding myself all day, I'd like the record to reflect at this time, as provided by statute, I want to reserve the question of attorney fees, litigation expense, suit money and things like that...." The record does not reflect any formal ruling on the "reservation" by the trial court, or any objection thereto by opposing counsel.

The trial court in his "Memorandum" of decision filed June 27, 1980, made no mention of any matters to be reserved or to be determined at a later date.

The formal decree of divorce, prepared by wife's attorney and filed on July 18, 1980, made no mention of attorney fees or of any unresolved issues to be determined in the case.

Husband lodged an appeal to this Court from the judgment of June 27, 1980.

On wife's motion, the trial court conducted a hearing on November 21, 1980, with reference to awarding attorney fees, litigation fees and other costs, and on December 12, 1980, the trial court awarded to wife an attorney fee to be paid by husband in the sum of $12,000, with $1,000 to be credited against the award for payment previously made under order of the court.

Husband filed a timely appeal from the "second award," and this appeal was consolidated with the first appeal taken by husband.

Husband urges that there can be but one judgment in a cause; that the journal entry of July 18, 1980, appears on its face to be a complete judgment determining all issues; that the "reservation" by wife at trial of the attorney fee issue was ineffectual because the trial court made no ruling thereon; and since the original journal entry made no reservation of any issues for later determination, the trial court had no jurisdiction to thereafter award attorney fees to the wife for services rendered up to the time of the lodging of the first appeal. We disagree.

In Frankovich v. Frankovich, ¹ (587) we held on appeal that the trial court did not err in failing to grant any temporary alimony or any temporary attorney fee for defendant's attorney where there was nothing in the record to indicate that the matter of temporary allowances of any kind was ever presented to the trial court, and nothing in the record to indicate that defendant made known to the trial court the action which defendant desired the trial court to make and his grounds therefor. The case before us is clearly distinguishable. The pre-trial order clearly disclosed that wife sought attorney fees. And while the trial court made no formal ruling upon wife's purported "reservation" of the issue of attorney fees at the trial, it at least served as notice that her attorney fee was still a viable issue in the case and had not been waived.

We next turn to the question of whether the journal entry of July 18, 1980, is preclusive of the trial court's later consideration and determination of the attorney fee issue. This in turn requires consideration of the nature of attorney fees in their relation to a decree of divorce rendered before their award.

Title 12 O.S.1981 § 1276 provides in pertinent part:

" * * * on granting a divorce in favor of the wife or the husband, or both, the court may require the husband or wife to pay such reasonable expenses of the other in the prosecution or defense of the action as may be just and proper considering the respective parties and the means and property of each; ...."

In the case of Jones v. Jones, ² we said:

"The question before us is whether, in a matrimonial action, the trial court has the authority to entertain wife's post-decree application for alimony and counsel fees after the husband's appeal has been brought here from the divorce decree. We hold that in the post-decree state of a matrimonial case in which no alimony was allowed the trial court is nonetheless vested with authority, subject always to our power of reexamination, to consider an application for provisional relief or interim adjustment of adjudicated property or custodial rights, all to remain in effect while the appeal is pending."

And we further said:

"Pre-1969 case law, which uniformly held that the trial court's jurisdiction ceased or stood suspended when an appeal had been brought, constitutes obsolete lore. Our post-1969 appellate procedure affords a convenient framework within which both trial and appellate courts share in the exercise of responsibility in resolving issues that are 'ancillary' to the pending appeal. In matrimonial litigation, among acts a trial judge is fully empowered to perform in a post-appeal stage are those pertaining to 'temporary adjustment of adjudicated rights pending the final disposition of appeal."

The "ancillary" and "accessory" status of such matters as payment of support, alimony and counsel fees during an interspousal appellate contest in their relation to the remainder of a divorce decree judgment was further clarified in Wilks v. Wilks ³ wherein we held them to be an "accessory" to the other provisions of a divorce decree judgment with reference to supersedeas thereof. In Wilks (763) we said: "Both the trial and appellate courts may make provisions for payment of support, alimony and counsel fees during an interspousal appellate contest."

In light of the foregoing, we hold that a trial court has jurisdiction to direct one spouse to pay the other spouse's attorney fees after judgment has been entered in the lower court and while an appeal from the judgment is pending in the appellate court regardless of whether the issue of attorney fees was omitted from the terms of the journal entry of judgment and regardless of whether the issue was therein reserved for later determination, provided only that the attorney fee issue is then a viable issue in the case and not theretofore resolved by order of the trial court. In so holding, we distinguish between matrimonial actions and other civil actions, for the reasons more fully explained in Jones v. Jones, supra, and Wilks v. Wilks, supra, particularly in the light of the 1969 amendment to the statute pertaining to an appeal in divorce litigation (12 O.S.1981 § 1282) as construed by this Court in Wilks. Thus, the case before us is distinguishable from Wabaunsee v. Armstrong ⁴ wherein we held that in non-matrimonial actions where the judgment of the trial court is superseded by bond, or where no supersedeas bond is required where no recovery was allowed, the trial court is without authority to award cost and attorney fee after an appeal has been properly lodged in the Supreme Court, and while the appeal is pending and prior to opinion and issuing of mandate thereon.

II.

HUSBAND'S INTEREST IN PROFIT-SHARING PLAN AS JOINTLY ACQUIRED PROPERTY.

Husband for many years contributed ten percent to a profit-sharing plan each year while a corporation of which he is a shareholder and employee contributed fifteen percent of each employee's salary to the plan. The value of husband's interest at the time of the divorce was determined to be $53,000. Husband's interest was treated by the trial court as jointly acquired property and awarded to husband with equal offsetting property being awarded to wife. Husband's assertion of error in treating said interest as jointly acquired property is fully answered in Carpenter v. Carpenter, ⁵ and is without merit.

While there was evidence that wife also participated in a profit-sharing plan in connection with her employment, a review of the record discloses that husband made no claim of any interest therein, and no evidence as to its value was presented. Claims of error not supported by the record will not be considered by this Court on appeal. ⁶

III.

TRIAL COURT'S DIVISION OF JOINTLY ACQUIRED PROPERTY, AWARD OF SUPPORT ALIMONY AND ATTORNEY FEES.

Husband challenges the division of property between the parties, the support alimony award to the wife, and the order to husband to pay wife's attorney fee as made and determined by the trial court.

In Carpenter v. Carpenter ⁷ (651) we said:

"The exigencies of a particular case can be...