Hogsett v. Hogsett, 24560

• Decision Date: 03 October 1966
• Docket Number: No. 24560,24560
• Citation: 409 S.W.2d 232
• Parties: Helen M. HOGSETT, Plaintiff, William D. Cosgrove, Movant-Appellant, v. Joseph R. HOGSETT, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 232

409 S.W.2d 232

Helen M. HOGSETT, Plaintiff William D. Cosgrove, Movant-Appellant, v. Joseph R. HOGSETT, Defendant-Respondent.

No. 24560.

Kansas City Court of Appeals, Missouri.

Oct. 3, 1966.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 5, 1966.

Application to Transfer Denied Jan. 9, 1967.

Thomas A. Sweeny, Kansas City, for movant-appellant.

Marshall W. Lyons, Kansas City, for respondent.

BLAIR, Judge.

On this appeal the facts relevant to a decision are not in dispute and the questions presented are purely legal ones. In September, 1964, Helen M. Hogsett commenced a divorce suit against Joseph R. Hogsett and filed a motion for 'temporary alimony, suit money and attorney's fees'. For more than a year thereafter the parties and their attorneys engaged in extensive negotiations in an effort to reach an agreement on the amount to be paid Mrs. Hogsett if a divorce was ultimately granted. Mrs. Hogsett died on October 1, 1965, while the divorce suit was still pending. The motion for temporary alimony, suit money and attorney's fees had never been presented to the court. On october 26, 1965, a suggestion of Mrs. Hogsett's death was filed by Mr. Hogsett in the Circuit Court where the divorce suit had been pending. On October 12, 1965, the Probate Court of Jackson County entered an order refusing letters of administration in the estate of Mrs. Hogsett. From the commencement of the divorce suit until Mrs. Hogsett's death she was represented by Mr. William D. Cosgrove, an attorney-at-law. On January 5, 1966, Cosgrove filed what he regards as a motion in the divorce proceeding: 'Motion Of William D. Cosgrove To Be Substituted As A Party Plaintiff Herein And For A Court Order Allowing Him Attorney's Fees And Reimbursement For Expenses Necessarily Incurred In The Prosecution Of The Divorce Action.' He alleged that the motion for temporary alimony, suit money and attorney's fees filed in September, 1964, was still pending before the court and that his claim for 'attorney's fees and expenses' incurred in the prosecution of the divorce suit was not 'extinguished' by the death of Mrs. Hogsett. He requested the court to enter an order substituting him as the personal representative of Mrs. Hogsett, in accordance with Civil Rule 51.12(a), V.A.M.R. and Sec. 507,100, subd. 1. (1), V.A.M.S., and to award him reasonable attorney's fees for services rendered Mrs. Hogsett during her lifetime and reimbursement for expenses (really suit money) he necessarily incurred in the prosecution of her divorce suit, all in the total amount of $15,000.00.

On February 1, 1966, Cosgrove filed what he regards as a motion in the divorce proceeding: 'Motion Of William C. Cosgrove To Substitute William S. Morris, Administrator of the Estate Of Helen M. Hogsett, As An Additional Party Plaintiff Herein And For A Court Order Allowing Cosgrove Reasonable Attorney's Fees And Reimbursing Him For Expenses Necessarily Incurred In The Prosecution Of The Divorce Action'. (Emphasis Supplied) The motion is referred to in the record as an 'alternative motion'. In it he alleged that the Probate Court of Jackson County had entered an order setting aside its previous order refusing letters of administration in the estate of Mrs. Hogsett and had granted such letters to William S. Morris, Public Administrator on January 26, 1966. He requested the court to substitute the Public Administrator as an additional party plaintiff in the divorce proceeding, as the duly appointed and qualified personal representative of Mrs. Hogsett, in accordance with Civil Rule 52.12(a) and Sec. 507.100, subd. 1. (1), V.A.M.S., and to enter an order awarding him (Cosgrove) rendered Mrs. Hogsett during her lifetime rendered Mrs. Hogsett during her lifetim and reimbursement for expenses (again suit money) he necessarily incurred in the prosecution of her divorce suit, all in the total amount of $15,000.00.

Thereafter Cosgrove presented both of his motions simultaneously to the trial court. At the outset, counsel for Mr. Hogsett objected to any evidence in support of the motions on the ground that the court's jurisdiction had been terminated by the death of Mrs. Hogsett. Reserving its ruling on this objection, the court heard evidence in support of the motions. Cosgrove established that from the commencement of the divorce suit until the death of Mrs. Hogsett he had rendered her valuable legal services. Beyond any doubt he represented her with energy, skill and fidelity. The court denied both motions and assigned as its reason that the death of Mrs. Hogsett caused the civorce suit to abate and that it therefore had no jurisdiction to entertain and adjudge the motions. Cosgrove appeals.

The allowances Cosgrove is seeking fall within the broad category of alimony, for allowances for support of the wife, suit money and attorney's fees are alimony. Anderson v. Anderson, mo.App., 404 S.W.2d 206, 209; Howard v. Howard, Mo.App., 300 S.W.2d 853, 855; Noll v. Noll, Mo.App., 286 S.W.2d 58, 61; Knebel v. Knebel, Mo.App., 189 S.W.2d 464, 466; Waters v. Waters, 49 Mo. 385, 388. The authority to award alimony, whether permanent or pendente lite, is found in Sec. 452.070, V.A.M.S., whose pertinent part reads: 'When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, * * * as, from the circumstances of the parties and the nature of the case, shall be reasonable, * * *. The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper, and the court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases.' It is settled that allowances for alimony and all it embraces must be made in a divorce proceeding by authority of Sec. 452.070 V.A.M.S., or not at all. Such allowances cannot be made in any other proceeding. Fiorella v. Fiorella, 241 Mo.App. 180, 240 S.W.2d 147, 151; Hamilton v. Salisbury, 133 Mo.App. 718, 114 S.W. 563, 564; Isbell v. Weiss, 60 Mo.App. 54, 56; Knebel v. Knebel, Mo.App., 189 S.W.2d 464, 466. Moreover, by the clear terms of Sec. 452.070, V.A.M.S. such allowances must be decreed to the wife and no allowances can be made to her attorney for the decisive reason that her attorney is not a party to the suit and cannot be in the absence of an authorizing statute and there is none. Anderson v. Anderson, supra, 404 S.W.2d l.c. 209; Howard v. Howard, supra, 300 S.W.2d l.c. 855; Noll v. Noll, supra, 286 S.W.2d l.c. 61; Knebel v. Knebel, supra, 189 S.W.2d l.c. 466; Kaltwasser v. Kaltwasser, Mo.App., 197 S.W.2d 102, 104; Bovard v. Bovard, 233 Mo.App. 1019, 128 S.W.2d 274, 276.

Cosgrove cites Hamilton v. Salisbury, 133 Mo.App. 718, 114 S.W. 563, Isbell v. Weiss, 60 Mo.App. 54, Fiorella v. Fiorella, 241 Mo.App. 180, 240 S.W.2d 147, Fullhart v. Fullhart, 109 Mo.App. 705, 83 S.W. 541, and decisions from other jurisdictions to support his claim that the trial court should have granted his motion for an attorney's fee and reimbursement for expenses necessarily incurred in the prosecution of the divorce suit. Sufficient it is to say here that in all of the above decisions by the courts of this state which he cites the award was made to the wife and not to her attorney and that decisions from other jurisdictions at variance with the settled rule in this state cannot be followed. ¹

Cosgrove cites also Waters v. Waters, 49 Mo. 385, a divorce proceeding, as authority for an allowance directly to him. It is true that the Supreme Court stated in the first paragraph of its opinion in Waters that the trial court 'allowed' the attorney for the wife 'the sum of $40, which was taxed in the costs against the plaintiff'. Holding that 'under our practice there is no warrant for taxing counsel fees in a bill of costs except in partition', the court was express in saying that the award for attorney's fees should have been made under authority of Wagn.Stat., p. 535, Sec. 12, which then read: 'The court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases' (the same provision is embraced in Sec. 452.070, V.A.M.S., supra). 'The allowance, then, under consideration should have been made to the defendant in her own name of a reasonable sum to meet the expenses of the suit, leaving her to make her own terms with her own counsel * * *.' Nonetheless, it finally said 'Nothwithstanding the irregularity in the manner of making the allowance, the plaintiff is not injured by it. The amount is not shown to be excessive, nor is it misappropriated. To reverse the judgment in order to allow the court to change the form of the allowance, is not called for by any considerations of injustice in the judgment as it now stands, and it will be affirmed.' We discover no instance where any appellate court of this state has ever regarded Waters as a precedent authorizing an allowance of attorney's fees directly to counsel in a divorce suit, and neither do we. We regard Waters only as an expedient disposition of a single case with the admonition that attorney's fees should be allowed in all future divorce proceedings to the wife and not to the attorney. Obviously, all other courts speaking on this subject have regarded it in the same light as evidenced by the unbroken line of decisions we have cited above.

Cosgrove asserts that Civil Rule 52.12(a) and Sec. 507.100, subd. 1(1), V.A.M.S. ² are authority for him to become a party to the divorce proceedings and to obtain an order making allowances directly to him. It is true that the civil rule and the statute both declare that if a party dies and the claim involved is not thereby 'extinguished', the court may order...