S.M.B. by W.K.B. v. A.T.W.

• Court: Missouri Court of Appeals
• Writing for the Court: SATZ; CARL R. GAERTNER; CARL R. GAERTNER
• Citation: S.M.B. by W.K.B. v. A.T.W., 810 S.W.2d 601 (Mo. App. 1991)
• Decision Date: 30 April 1991
• Docket Number: No. 58013,58013
• Parties: S.M.B., by her next friend W.K.B. and W.K.B., individually, Plaintiffs-Appellants, v. A.T.W., Defendant-Respondent.

Page 601

810 S.W.2d 601

S.M.B., by her next friend W.K.B. and W.K.B., individually Plaintiffs-Appellants, v. A.T.W., Defendant-Respondent.

No. 58013.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 30, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied June 5, 1991.

Application to Transfer Denied July 23, 1991.

David Wells and Linda Carroll Goyda, St. Louis, for plaintiffs-appellants.

Michael J. McAvoy, Fenton, Allan F. Stewart and Catherine Ward Keefe, Clayton, for defendant-respondent.

SATZ, Judge.

This is a paternity case in which W.K.B., the father, is appealing an award of attorneys' fees to the attorneys of A.T.W., the mother. We reverse and remand.

This case is one of several interrelated cases filed by the parties at various times. All these cases raised the issues of paternity and custody of the child. Although the complete details of all of the other cases are not essential to this case, some limited understanding of their procedural history helps the analysis of the issues before us.

For clarity, we have named and listed the cases, including their respective significant events. The first three listed cases, although relevant, are less meaningful than the rest of the listed cases. These first three and their respective events are listed by case, rather than chronologically. The remaining cases and their events are listed, generally, in a chronological order.

Procedural History

Mother's Paternity Case

On January 20, 1988, the mother filed a petition in the St. Louis County Circuit Court seeking a declaration that the father is the natural father of the child and an order granting the mother custody of the child. On May 26, 1988, the mother dismissed her petition without prejudice.

Mother's California Case

On May 27, 1988, the mother filed a petition in a California Court again seeking a declaration of the father's paternity, her custody of the child and child support. On September 29, 1988, the father filed a motion to quash summons, which was granted on October 21, 1988.

Mother's Adult Abuse Case

On September 29, 1988, the mother filed an adult abuse petition in St. Louis County Circuit Court. The court apparently issued three ex parte orders: 1) a grant of temporary custody of the child to the mother; 2) a grant of temporary custody of another of the mother's children to her; and 3) an order of protection against the father for the benefit of the mother. On September 30, 1988, the father moved to dissolve the ex parte orders. The orders of temporary custody were dissolved. On October 4, 1988, the order of protection was returned non-est.

Father's Paternity Case

This is the present case. On July 25, 1988, S.M.B., the minor child, by her next friend, the father, and the father individually sued the mother seeking a declaration that the father is the natural father of the child and an order granting him permanent custody of the child. On December 7, 1988, the mother filed her answer, and a cross-petition, seeking a declaration of the father's paternity, custody of the child, child support and "costs and attorney's fees in this action."

Protective Order Cases

On September 30, 1988, while his Paternity Case was pending, the father filed, in a separate case, a petition for an order of protection, alleging the mother was neglecting the child and seeking custody. Apparently, this petition was transferred to a Commissioner in the juvenile court who recommended that temporary custody be awarded to the father and that a hearing be set on the issue of custody. The trial court granted the father temporary custody, and apparently set the petition for hearing before the Commissioner on November 8, 1988.

Subsequently, on October 28, 1988, in a separate case, the mother filed a petition for an order of protection, seeking an ex parte order protecting the mother from the father and requesting a hearing at which the mother would seek both custody of the child and child support. The request for an ex parte order was denied, but, apparently, a hearing was set before the Commissioner on this petition on November 8, 1988, the same date for hearing the father's petition for an order of protection.

Prohibition Case in Supreme Court

On November 7, 1988, the day before the hearing on the petitions for the orders of protection, the mother filed a petition captioned "petition for writ of prohibition" in our Supreme Court, seeking to set aside the ex parte order of protection issued to the father and to prohibit the trial court from "assigning the Petition for Order of Protection to a Commissioner of the Juvenile Court."

On that same day, that Court issued its preliminary order in prohibition and also ordered the trial court to set aside its ex parte order of protection awarding temporary custody of the child to the father.

Mother's Habeas Corpus Case in Supreme Court

On the next day, November 8, 1988, the mother filed a petition in the Supreme Court requesting a writ of habeas corpus to issue against the father, based on the allegation that he was illegally restraining the child. The mother also sought custody of the child. The court granted the writ, ordered the mother and father to share custody during the habeas corpus hearing, and assigned this case to a Special Master for the hearing.

The Master apparently expanded the hearing to include the paternity of the child, the parties' fitness, custody, visitation, child support and attorney's fees. After a hearing, the Master issued his Findings of Fact, Conclusions of Law and Recommendations on May 9, 1989.

Father's Paternity Case

At the request of the father, on May 19, 1989, the Supreme Court issued its preliminary order of prohibition, prohibiting the trial court from proceeding in the Father's Paternity Case.

On September 8, 1989, the Supreme Court issued its decision based upon the report of the Master. State ex rel Busch by Whitson v. Busch, 776 S.W.2d 374 (Mo. banc 1989) (Busch ). A few days later, the Court dissolved its preliminary order in prohibition.

On December 19, 1989, the trial court held a hearing on the mother's prayer for "costs and attorney's fees in the [present case]", the Father's Paternity Case. The court awarded the attorneys $77,641.32 for "fees" and "costs", $67,821.31 to Mr. Michael McAvoy and $9,820.01 to Mr. Allan Stewart. ¹ This appeal by the father followed.

Issues on Appeal

As can be seen, the issues of paternity, fitness of the parties, child custody and child support were common to almost all of the cases between the parties. Those issues were addressed and disposed of by the Supreme Court in Busch, supra. The Court adopted the Master's recommendation on attorneys' fees and expenses and awarded Mr. McAvoy $57,037.19 and Mr. Stewart $7,775.35.

The father challenges the award of attorneys' fees in the present case on several grounds. We address first his res judicata argument which, on the record before us, requires us to reverse and remand the case.

As we understand the father's res judicata argument, it is two-fold. The two specific arguments, facially, appear to be the same.

First, the father argues that the mother's attorneys admit the fees they now seek were sought in the Habeas Corpus Case, Busch. The issue of those fees, he contends, was addressed and disposed of in Busch; therefore, he contends, the attorneys are barred by the doctrine of res judicata, claim preclusion, from relitigating that issue in the present case.

Second, the father contends that work done and compensated for in Busch was no different than the work for which the mother's attorneys now seek compensation; therefore, the award of attorneys' fees here is an improper double recovery for the same work.

Based on the record before us, we find the first argument well-taken in part and misdirected in part. The second argument we find persuasive.

Claim Preclusion

The father contends the issue of attorneys' fees here is an "issue already squarely presented and conclusively resolved by the Missouri Supreme Court" in Busch, supra, the Habeas Corpus Case. The father reasons as follows.

In Busch, the mother's attorneys requested an award of fees for their representation of her from the time they each were employed through all the proceedings before the Supreme Court. The present case is a repeat performance of the request for fees previously addressed. The mother's attorneys either requested or could have requested in Busch the fees they now seek. Since the Master and, in turn, the Court, in Busch, already addressed and disposed of the same fee requests made or which could have been made, the attorneys' present claim for fees is precluded by the doctrine of res judicata. We read and interpret the legal effect of Busch differently than the father.

Mr. McAvoy was hired by the mother on August 27, 1987. Mr. Stewart was hired by Mr. McAvoy on behalf of the mother on October 21, 1988. At the hearing before the Master, in Busch, they each apparently requested fees for the entire time they represented the mother. The Master, however, limited their fees to the time spent on the case before him. In arriving at his recommended awards to each attorney, he

deducted all fees and expenses incurred before the preparation and filing of the Writ of Habeas Corpus ... and the fees and expenses included in the prosecution or defense in other related cases in St. Louis and California....

The Court adopted that recommendation. Busch, 776 S.W.2d at 378.

Certainly, the Master's recommendation and the Court's decision was proper, reasonable and predictable. We know of no legal principle which empowers a court to award fees to an attorney in one case for work done in another case, without some demonstrated compelling reason to do so. The record before us does not so demonstrate. Simply stated, in Busch, the attorneys were awarded fees for the work done in the Habeas Corpus Case, no more, no less. Busch did not decide whether the attorneys were...