Strater v. Strater

• Citation: 159 Me. 508,196 A.2d 94
• Parties: Mary B. STRATER v. Nicholas A. STRATER.
• Decision Date: 20 December 1963
• Court: Supreme Judicial Court of Maine (US)

Page 94

196 A.2d 94

159 Me. 508

Mary B. STRATER v. Nicholas A. STRATER.

Supreme Judicial Court of Maine.

Dec. 20, 1963.

Pierce, Atwood, Scribner, Allen & McKusick, by Horace Hildreth, Jr., Portland, for appellee.

Sewall, Strater, Erwin & Winton, by Robert J. Winton, York, for appellant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, SIDALL and MARDEN, JJ.

TAPLEY, Judge.

On appeal. This is an action of divorce heard by a single Justice of the Superior Court. He granted a divorce to the complainant, Mary B. Strater, for the cause of cruel and abusive treatment and further ordered and decreed that the defendant, Nicholas A. Strater, pay the sum of $50.00 per week for the support of a minor child, the sum of $75,000.00 in lieu of alimony and, as counsel fees to complainant's Maine counsel, the sum of $6,000.00 with $183.40 disbursements and to her New York counsel the sum of $4,500.00. The defendant seasonably filed notice of appeal as to that part of the judgment relating to the award of the lump sum in lieu of alimony and to the amounts decreed as counsel fees. The decision of the Justice below granting the divorce was not appealed.

The points of appeal are as follows:

'1. Award lump sum:

'a. Excessive under circumstances surrounding marriage.

'b. Excessive because Plaintiff had no part in accumulating any part of said Defendant's estate.

'c. Excessive because said findings consider Defendant's possible future share in mother's estate.

'd. Excessive because said amount found according to New York standards of living, rather than standards of marital RES; to wit: State of Maine.

'2. Counsel fees:

'a. Excessive.

'b. Defendant should not be liable to pay for the counsel fees of two separate law firms to represent Plaintiff in said action.'

Hearing was had on the divorce complaint at the September Term, 1962 of the Superior Court, within and for the County of York, without contention as to the merits of the divorce. The presiding Justice, after a hearing on the merits, decreed a divorce to the complainant for the cause of cruel and abusive treatment. The questions of child support, alimony and counsel fees were contested.

The jurisdiction and authority of the court in matters pertaining to divorce are derived from the statute. McIntire v. McIntire, 130 Me. 326, 155 A. 731; Stratton v. Stratton, 73 Me. 481. Jurisdiction is confined within the purpose and intent of the statutes. Poulson v. Poulson, 145 Me. 15, 70 A.2d 868.

COUNSEL FEES

The authority of the Court to order the husband to pay counsel fees of the wife is derived from the statutes.

'Pending a divorce action, the court may order the husband to pay to the wife, or to her attorney for the wife, sufficient money for her defense or prosecution thereof, * * *.' (emphasis supplied). Chap. 166, Sec. 59, R.S.1954, as amended.

'This statute guarantees the wife full and complete relief, and provides the avenue through which her prosecution or defense of a libel may be maintained and the services of an attorney may be secured.' Meaher v. Mitchell, 112 Me. 416-419, 92 A. 492, 493.

The right to attorney's fees is dependent upon the statutory provisions. Vishner v. Vishner, 125 Cal.App.2d 667, 271 P.2d 68; Maston v. Maston, 171 Kan. 112, 229 P.2d 756; Fordice v. Fordice, 126 Ind.App. 562, 132 N.E.2d 618.

Mrs. Strater consulted her New York counsel on June 23, 1961 which resulted in the preparation of the necessary papers for an application for temporary alimony and counsel fees in the New York jurisdiction. After some preparation for the New York procedure Mrs. Strater informed New York counsel, on August 2nd, that she had decided to go back to her husband. Apparently her effort at reconciliation met with failure because on February 2, 1962 she again consulted New York counsel, whereupon counsel prepared new papers for a separation and for temporary alimony, as the only way jurisdiction could be obtained in New York in order to get an award of alimony was by an order of sequestration. After further investigation it was discovered that Mr. Strater had no assets in New York that were attachable so it was decided that Mrs. Strater should proceed in the jurisdiction of Maine. It was at this point the case was referred to Maine counsel for divorce procedure. After date of referral there was some participation of New York counsel involving conferences.

Maine counsel, after referral by the New York attorneys, proceeded with the case by commencing divorce action, performing those functions necessary and incidental to the prosecution of a divorce complaint. There were conferences with the client, with New York attorneys, the working out of temporary support pending complaint and research of the law as affecting tax problems; then came the hearing of the divorce which was contested only as to the issue of alimony, child support and counsel fees. Maine counsel submitted evidence at the hearing as to time consumed in the preparation, prosecution and defense of the case. New York counsel presented evidence as to services rendered Mrs. Strater before and after the commencement of the divorce action.

In this case counsel fees are not sought on the basis of a contractual relationship between attorney and client but under the provisions of statute providing that the wife may have benefit of counsel whose fees shall be paid by the husband. The reason for this statutory provision is obvious as there are numerous cases where the wife would be at a disadvantage if unable to have counsel because of a financial inability to employ one. The statute is explicit in its language when it provides that 'pending a divorce action, the court may order the husband to pay to the wife, or to her attorney for the wife, sufficient money for her defense or prosecution thereof.'

The question arises under the circumstances of the case at bar as to whether or not the services performed by Mrs. Strater's New York counsel before commencement of the divorce action in Maine were such as to come within the contemplation of the Legislature when it enacted the statute wherein it is provided that pending a divorce action the court may order the husband to pay the wife's counsel fees. The divorce action must be pending as a jurisdictional requisite for a counsel fee order.

The case of Stibbs v. Stibbs, 38 Wash.2d 565, 231 P.2d 310 concerns an order for the payment of counsel fees in a separate maintenance action. A statute in many respects similar to the Maine statute is involved. On page 311 of 231 P.2d, the pertinent portion of the statute is quoted:

"Pending an action * * * the Court may make * * * such orders relative to the expenses of such action, including attorneys' fees, as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof. * * *" The Court observed, at page 311, of 231 P.2d;

'All expenses reasonably incurred or necessary to be incurred during the pendency of the action, * * * may be provided for by the superior court. * * * The action is 'pending' until its final disposition.' (emphasis supplied).

The Court obviously construed a statute similar to the Maine statute as authorizing the Court to allow counsel fees reasonably incurred and rendered during the period of the pendency of the action.

The basic reason underlying the allowance of counsel fees to the wife is to provide her with counsel so that her legal rights in the prosecution or defense of the divorce action shall be assured. It is apparent from the language employed in Sec. 59, Chap. 166, R.S.1954 that the Legislature intended to provide the wife with sufficient funds, at the husband's expense, to obtain legal counsel for her defense or prosecution of the complaint of divorce then pending and not for any legal services relating to separate support or other marital problems that might arise from the marriage relationship. This is particularly so in the instant case where New York counsel was employed by the wife to obtain temporary alimony for her. The statutory authorization for the allowance of sufficient money for the prosecution or defense of a divorce complaint cannot be construed to provide for services rendered previous to the pendency of the divorce complaint excepting, however, that during pendency allowance may be made for some past expense if it were shown that its payment was necessary to enable the wife to properly prosecute or defend the pending divorce action. Beadleston v. Beadleston, 103 N.Y. 402, 8 N.E. 735, 736.

'The right to counsel fees does not obtain in every action brought by a wife against her husband. This right is a matter of statutory regulation. The existence of statutory provisions with respect to the allowance of counsel fees in actions for divorce or separation has been regarded as limiting the power of the court to grant such relief.' Ravand v. Ravand, 273 App.Div. 507, 78 N.Y.S.2d 138, 140.

The services of New York counsel were, in the most part, directed to obtaining financial relief for their client, Mrs. Strater, under New York procedure and before the institution of a divorce action in the State of Maine. They were in no way related to or concerned with the preparation of the action of divorce which was commenced and prosecuted in Maine. Allowance to the wife of counsel fees is governed by statute which, according to our interpretation, authorizes allowance of expenses and fees for preparation and trial of a pending complaint for divorce. We find error in the presiding Justice's allowance of counsel fees in the sum of $4,500.00 for New York counsel.

We now give our attention to counsel fees allowed to Maine attorneys representing Mrs. Strater. In the first instance, the case came to Maine counsel by referral on the part of New York counsel. The complaint was served, case was prepared and hearing was had. There were numerous conferences previous to hearing as would naturally be expected where a substantial amount of money...