Kelly v. Maupin
| Decision Date | 14 April 1936 |
| Docket Number | 26834. |
| Citation | 58 P.2d 116,177 Okla. 44,1936 OK 344 |
| Parties | KELLY v. MAUPIN et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 12, 1936.
Syllabus by the Court.
1. A valid court order directing the payment of an attorney's fee by one of the parties to a divorce action creates an enforceable legal obligation to pay the same.
2. Parties to a divorce action cannot, after a valid court order has been made allowing an attorney's fee, deprive the attorney of the fee by dismissing, or attempting to dismiss the action.
3. The right of a party plaintiff to dismiss an action, when it exists, does not include the judicial power to vacate an existing judgment or order of the court previously made in such action.
4. An attorney for whose benefit an order has been made directing the payment of attorney's fee in connection with a divorce action has sufficient interest in the matter to seek the enforcement of such order.
Appeal from District Court, Oklahoma County; Clarence Mills, Judge.
Action by Lillie Kelly against D. L. Kelly, wherein John A. Maupin an attorney, sought to enforce an order for the payment of attorney's fees. From a judgment, defendant appeals.
Affirmed.
Morris & Wilhite, of Anadarko, for plaintiff in error.
Jack W Page, of Oklahoma City, for defendant in error John A Maupin.
The principal question in this case is whether the plaintiff in a divorce action may defeat the right of her attorney to collect an allowed fee by thereafter dismissing, or attempting to dismiss, such action. Apparently this court has not passed on this precise question heretofore. It is presented by the record, which reveals the following facts:
On August 6, 1934, Lillie Kelly, as plaintiff, filed in the district court of Oklahoma county a petition against D. L. Kelly for divorce, temporary and permanent alimony, and division of property acquired through the joint efforts of herself and the defendant. She also sought an order of the court requiring the defendant husband to pay the sum of $1,500 as temporary attorney's fee for her counsel, John A. Maupin. She alleged her husband was worth the sum of $100,000.
After the petition had been filed, the court made its order directing the defendant (among other things not necessary to mention here) to pay $1,500 as temporary attorney's fee, or appear and show cause for his failure to do so.
Copy of the order was almost immediately served upon the defendant, who promptly got in touch with the plaintiff and entered into an oral agreement with her to pay her a monthly allowance, securing from her a promise to dismiss the divorce action. The defendant then paid no attention whatever to the order made by the district court.
On December 5, 1934, the plaintiff presented to the clerk of the district court for filing an instrument denominated a dismissal, which purported upon its face to dismiss the divorce action. This instrument was signed by the plaintiff, but was not signed by her attorney. There is some controversy in the record as to whether the instrument was physically filed by the clerk. This, we think, is immaterial in determining the rights of the parties to this action. Unquestionably the instrument was tendered to and left with the clerk for filing, and was therefore just as effective as though it had been physically accepted by the clerk and actually filed. Reeder et al. v. Mitchell et al., 117 Okl. 21, 244 P. 773; section 80, O.S.1931. It was not within the province or power of the clerk to determine the legal significance or effect of the instrument thus tendered, and his opinion concerning the matter is immaterial.
Subsequent to the filing of this purported dismissal, the previous oral agreement was superseded by a written contract of property settlement between the parties to the action. This was executed on the 22d day of April, 1935.
Thereafter, on the 3d day of May, 1935, John A. Maupin, the attorney for the plaintiff, filed in court his application for a citation for contempt showing that no part of the attorney's fee allowed by the trial court had been paid, and seeking to have the defendant cited to appear and show cause why he should not be punished for contempt for failure to obey the order. On the 7th day of May, 1935, the defendant appeared and filed his response to the application, seeking to defeat the same upon the grounds: (1) That the court was without authority to enter the order in the first place because plaintiff was not a resident of Oklahoma county when suit was commenced; (2) that the jurisdiction of the court had ceased by reason of the claimed dismissal of the action; and (3) because John A. Maupin, the attorney who presented the application, was not a party to the litigation and therefore could not seek relief in the court.
The trial judge held that the district court of Oklahoma county had jurisdiction of the subject-matter of the action at the time the previous order was made; that the attempted dismissal of the action by the plaintiff without a court order for that purpose was ineffective; that the court still had jurisdiction of the matter; and that the attorney, John A. Maupin, had a real interest in the controversy to the extent of the attorney's fee allowed, and therefore had a right to seek an enforcement of the order. The court, however, decided, in view of the equities in the case, that the amount allowed as attorney's fee should be reduced to $750. The previous order was therefore modified to that extent and the defendant directed to pay that sum. The trial court then entered a dismissal of the action in its other aspects.
The defendant, D. F. Kelly, brings the case to this court upon appeal appearing herein as plaintiff in error. He reasserts, in substance, the contentions made before the trial court.
John A. Maupin and Lillie Kelly are named as defendants in error. We shall in this opinion continue to refer to the parties in the order of their appearance before the trial court.
We do not understand that the defendant is contending that a district court in a pending divorce action cannot make an order requiring a defendant husband to pay the expenses of the suit, including a temporary attorney's fee, for the benefit of his wife's attorney for the prosecution of such action. This power has been universally recognized in this jurisdiction, and is authorized by our statutes. Section 670, O.S.1931. The defendant, however, urges that the district court of Oklahoma County had no power to act at all because, as he asserts, his wife was not then a resident of Oklahoma county. It is undisputed that she was a resident of the state of Oklahoma more than one year next preceding the filing of this action. Our statute, of course, places the venue of the action in the county of plaintiff's residence. See section 666, O.S.1931, and section 116,...
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