McLaughlin v. McLaughlin, 32983

• Decision Date: 16 April 1968
• Docket Number: No. 32983,32983
• Citation: 427 S.W.2d 767
• Parties: Bonnie McLAUGHLIN, Plaintiff-Respondent, v. Edgar McLAUGHLIN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 767

427 S.W.2d 767

Bonnie McLAUGHLIN, Plaintiff-Respondent, v. Edgar McLAUGHLIN, Defendant-Appellant.

No. 32983.

St. Louis Court of Appeals, Missouri.

April 16, 1968.

Edgar McLaughlin, Thomas B. Maue, Clayton, pro se.

Hal B. Coleman, Coleman, Ross & Cekovsky, Clayton, for respondent.

CLEMENS, Commissioner.

Soon after filing this divorce suit the plaintiff reconciled with her husband, discharged her attorney, and personally filed a memorandum dismissing her case. The attorney then forged ahead--under his own power--to prosecute and prevail on the wife's prior motion for allowances pendente lite. Over the husband's protests the trial court granted the motion so far as it included attorney fees, and rendered a $381 judgment against the husband. He appeals.

The sequence of events: On May 2, 1967, Mrs. Bonnie McLaughlin by her attorney, Hal B. Coleman, filed a petition for divorce against Edgar McLaughlin. The next day Mr. Coleman filed a motion for allowances pendente lite, including attorney fees. A week or so later the McLaughlins reconciled and she discharged Mr. Coleman. On May 19, 1967, Mrs. McLaughlin went to the courthouse and personally filed a memorandum to dismiss her case. The trial judge wrote Mrs. McLaughlin 'advising that he would not permit a dismissal of the suit unless the memorandum was signed by the attorney of record.' Learning of Mrs. McLaughlin's attempted dismissal, Mr. Coleman had her motion for allowances set down for hearing.

It was called up on June 13, 1967. Defendant Edgar McLaughlin protested. He asked the court to deny the motion or to dismiss the case because (1) Mrs. McLaughlin had filed a voluntary dismissal of the case, (2) she had discharged Mr. Coleman, (3) Mr. Coleman had no interest in the suit, and (4) the parties had reconciled. The court took the motion under advisement and went ahead with the hearing.

Mr. Coleman had subpoenaed Mrs. McLaughlin to attend the hearing. She appeared and he cross-examined her as an adverse witness 'since quite obviously her interests were now adverse to his.' Mrs. McLaughlin testified she had employed Mr. Coleman and had detailed her own considerable financial means. She knew nothing about the motion for temporary allowances but had heard Mr. Coleman say 'something about my husband would pay the attorney's fees.' Mr. Coleman had also subpoenaed Mr. McLaughlin to the hearing and cross-examined him about finances. Mr. Coleman then took the stand and testified that Mrs. McLaughlin had employed him but 'my services * * * were terminated by her at the time of the reconciliation.' His testimony sustained the amount of his fee.

We have before us a spectacle that is abnormal, if not bizarre: an attorney purporting to act for a client who had discharged him. Mrs. McLaughlin's right to discharge Mr. Coleman cannot be questioned. (In re Downs, Mo., 363 S.W.2d 676(1).) The attorney-client relationship is, in a higher sense, that of agent and principal. An attorney advocates but does not litigate; he acts not for himself but as his client's alter ego. (State ex rel. A.M.T. v. Weinstein, Mo.App., 411 S.W.2d 267(3, 5).) It follows that when an attorney is discharged he no longer acts for his former client. Here, Mr. Coleman admits Mrs. McLaughlin discharged him and that his own interest then became adverse to hers. Despite this, he professes--both in the trial court and here--to represent Mrs. McLaughlin and to obtain and uphold a judgment for her against her husband.

We hold that once an attorney-client relationship is severed the attorney cannot prosecute a motion for allowances pendente lite, since he no longer acts in his client's behalf and cannot act in his own behalf because he is not, nor ever was, an interested party to the action. (Hogsett v. Hogsett, Mo.App., 409 S.W.2d 232(3, 4); Kaltwasser v. Kaltwasser, Mo.App., 197 S.W.2d 102(1).) Nor does the lawyer have a personal interest in the allowances, because allowances pendente lite are akin to alimony--personal to the wife. (Knebel v. Knebel, Mo.App., 189 S.W.2d 464(1).) The trial court should have denied the motion for allowances on Mr. McLaughlin's asserted grounds that Mr. Coleman did not represent Mrs. McLaughlin and had no interest in the suit.

In addition to Mr. McLaughlin's motion to deny the allowances, he moved the trial court to dismiss the divorce case. This, on the ground that Mrs. McLaughlin had filed a voluntary dismissal. We do not now consider the trial court's original failure to act on Mrs. McLaughlin's memorandum when she filed it; then Mr. Coleman was attorney of record and the authenticity of Mrs. McLaughlin's memorandum was not established. What we do now consider is the trial court's failure to dismiss the suit as...