Lippincott v. Lippincott
| Decision Date | 16 February 1950 |
| Docket Number | No. 32728,32728 |
| Citation | 152 Neb. 374,41 N.W.2d 232 |
| Court | Nebraska Supreme Court |
| Parties | LIPPINCOTT v. LIPPINCOTT. |
Syllabus by the Court
1. Where a decree for alimony is entered, which the husband attempts by his own extrajudicial conduct to avoid, alter, or revise, and litigation in or incidental to the original case necessarily results therefrom, in order to protect and enforce such decree the trial court has power and authority in the original divorce action to award the wife such expenses and reasonable attorneys' fees as were necessary to defend or prosecute such litigation.
2. A decree for alimony in a divorce action is not a judgment within the meaning of sections 25-1420 or 25-1515, R.R.S.1943.
3. In cases where a controversy arises with relation to the allowance of an attorney's fee by the court, a determination thereof is largely within the discretion of the court, and it may be fixed by the trial or appellate court, either with or without the aid of expert testimony as to value, although neither the trial nor appellate court can, in assessing such fees, arbitrarily ignore the undisputed evidence and findings based thereon.
4. In determining the value of legal services rendered by an attorney, it is proper to consider the amount involved, the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised and the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for similar services.
Dryden, Jensen & Dier, Kearney, for appellant.
Mothersead, Wright & Simmons, Scottsbluff, for appellee.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is a proceeding in the original divorce action twice previously before this court, reported Lippincott v. Lippincott, 141 Neb. 186, 3 N.W.2d 207, 140 A.L.R. 901, and Lippincott v. Lippincott, 144 Neb. 486, 13 N.W.2d 721. Plaintiff, Ena F. Lippincott, has remarried, and is now known as Ena F. Wolski. In the original trial, the decree awarded plaintiff an absolute divorce with certain real estate in Scotts Bluff County as alimony. Upon appeal, this court affirmed the judgment awarding plaintiff a divorce, but remanded the cause to the district court for the purpose of taking additional evidence upon the question of alimony.
On such further hearing, the same land was awarded to plaintiff in a decree, which, among other things, provided: * * *
'It is further considered, adjudged and decreed that the defendant be required to clear the title to the real estate hereinbefore ordered conveyed to the plaintiff of any claims of Virginia Lippincott. * * *
'It is further ordered that the court retain jurisdiction for the purpose of enforcing that part of the decree requiring defendant to clear the title of the real estate of any claim of Virginia Lippincott and to retain jurisdiction to enforce any part of the decree of this court.'
Such decree was entered on the 14th day of August 1943. It was modified by Lippincott v. Lippincott, 144 Neb. 486, 13 N.W.2d 721, in one particular which is not involved here, and on the 18th day of April 1944, the mandate of this court was filed in the district court and decree entered thereon which expressly provided that the original decree as amended 'is in all other respects confirmed and remains in full force and effect.' We thus have a decree of the district court for Scotts Bluff County, affirmed by this court, expressly finding and requiring defendant to quiet the tile of claims of Virginia Lippincott to the land awarded plaintiff as alimony, and a specific retention of jurisdiction by the trial court to enforce that decree.
Pending the first appeal in the divorce action, Virginia Lippincott, then claimed wife of defendant, commenced an action in the district court for Buffalo County against plaintiff herein, seeking to quiet title in Virginia Lippincott to the lands in question. In that situation, defendant not having complied with the trial court's decree to clear the title, plaintiff on August 14, 1944, filed an application in the divorce action, still pending as aforesaid, praying that defendant Harvey R. Lippincott be required to show cause why he should not be ordered to pay the taxes on the property prior to 1943, and the soil conservation and government crop payments for 1943, as theretofore ordered, and pay into court for plaintiff suitable and proper amounts to enable her to defend the action of Virginia Lippincott in Buffalo County, and to carry on and maintain an action against defendant and Virginia Lippincott to quiet title to the lands in Scotts Bluff County which had been awarded to plaintiff as alimony by the trial court.
On the 30th day of October 1944, Harvey R. Lippincott, Jr., defendant's son, on ex parte application to the district court for Buffalo County, became substituted as plaintiff therein for Virginia Lippincott, who had theretofore on September 7, 1944, joined in a deed with defendant conveying the premises to said Harvey R. Lippincott Jr. Thereafter, various proceedings were had in the district court for Buffalo County, involving special appearances, restraining orders, injunctions, citations for contempt, and a judgment finding Ena F. Wolski guilty of contempt. Therein, the trial court ultimately enlined plaintiff herein from maintaining her action instituted on November 23, 1945, in Scotts Bluff County, to quiet her title to the premises. The litigation in Buffalo County did not terminate until the decisions of this court in Lippincott v. Wolski, 147 Neb. 930, 25 N.W.2d 747, 169 A.L.R. 1236, and Wolski v. Lippincott, 147 Neb. 944, 25 N.W.2d 754. As a result of those opinions, the litigation in Buffalo County was terminated upon jurisdictional grounds, plaintiff herein was absolved of contempt, and the injunction preventing plaintiff from prosecuting her action to quiet title in Scotts Bluff County was dissolved.
Plaintiff then proceeded with her action to quiet title until decree was obtained. In the meantime, another action had been brought by defendant's father, James Lippincott, in the district court for Scotts Bluff County, seeking to quiet title to the premises in himself. However, the trial court refused to grant him the relief sought, whereupon both cases were respectively appealed to this court where they were affirmed for failure of appellants therein to file briefs. Wolski v. Lippincott, No. 32580, and James Lippincott v. Wolski, No. 32581.
On September 23, 1948, plaintiff filed a supplemental petition in the original divorce action still pending as aforesaid, praying, in addition to the relief sought by her on August 14, 1944, that the trial court find and determine the amount due and owing to her for expenses and attorneys' fees necessitated by the aforesaid litigation, in order to protect and enforce the original decree of the court, awarding alimony to plaintiff. Defendant answered, averring, among other things, that the court was without authority or jurisdiction to enter such an order, and pleading the statute of limitations.
After hearing upon the issues thus presented, the trial court entered a judgment finding generally for plaintiff and against defendant. After reciting the history of the litigation and the necessity for the costs, expenses, and employment of counsel by plaintiff therein to clear the title to the property awarded plaintiff as alimony, and protect and enforce the judgment therefor, the court entered its judgment awarding plaintiff $1,507.28 for expenses, $2,500 as fees for her attorney, J. C. Tye, and $12,500 as fees for her attorney, James G. Mothersead, or a total of $16,507.28.
Defendant's motion for new trial was overruled, and he appealed to this court, assigning: (1) That the trial court was without jurisdiction to enter such a judgment; (2) that the cause of action was barred by the statute of limitations; and (3) that the judgment was excessive, not sustained by the evidence, and contrary to law. We conclude that the judgment was excessive, but that the other assignments have no merit.
Defendant argued that the district court had only jurisdiction to enter a judgment for expenses and attorneys' fees during the pendency of the action for divorce, and that a reservation in the decree attempting to provide for retention of jurisdiction to enforce the decree added nothing to the court's powers, because the court in granting a divorce is authorized to give only such relief or enter such orders as are provided by statute.
In the light of that contention, we have examined the statutes and applicable authorities. In that connection, the trial court has discretionary power and authority in a divorce action to require the husband to pay any sum necessary to enable the wife to carry on or defend the suit during its pendency, and decree costs against either party. Section 42-308, R.S.1943. Actions for divorce are conducted in the same manner as other suits in courts of equity, and the trial court has authority to decree costs and enforce its decrees as in other cases. Section 42-307, R.S.Supp., 1949. All judgments or orders for the payment of alimony are liens upon the property, as in other actions, and may be enforced by proceedings in aid of execution or other action or process as other judgments. Section 42-319, R.S.1943. These enforcement remedies are cumulative and in no respect abridge any subsisting...
To continue reading
Request your trial