Swick v. Swick

• Decision Date: 23 November 1993
• Docket Number: No. 74088,74088
• Citation: 864 P.2d 819,1993 OK 151
• Parties: Cynthia P. SWICK, deceased and M. Joe Crosthwait, Jr. (Real Party in Interest), Appellants, v. Edward Eugene SWICK, Appellee.
• Court: Oklahoma Supreme Court

Page 819

864 P.2d 819

1993 OK 151

Cynthia P. SWICK, deceased and M. Joe Crosthwait, Jr. (Real Party in Interest), Appellants, v. Edward Eugene SWICK, Appellee.

No. 74088.

Supreme Court of Oklahoma.

Nov. 23, 1993.

Certiorari to the Court of Appeals, Division I, Appeal from the District Court of Oklahoma County, State of Oklahoma, Niles Jackson, Trial Judge.

Appellant, M. Joe Crosthwait, Jr. (attorney), represented Cynthia P. Swick, the plaintiff in a divorce action, against appellee. The trial court granted a divorce and in the decree attorney fees were reserved by the court for later hearing. Cynthia died after the court ordered the divorce. Attorney then moved to have appellee pay Cynthia's attorney fees which were owed to him by her. The trial judge held the administrator of the deceased's estate and not attorney, was the correct party to bring the motion. The Court of Appeals affirmed holding attorney lacked standing to request attorney fees from the opposing party in a divorce case where the client died post-divorce and where no order awarding such fees existed. Held: The trial court has jurisdiction to hear the matter of attorney fees and attorney has standing to pursue attorney fees from appellee in the divorce action.

Certiorari Previously Granted; Court of Appeals' Opinion Vacated; Trial Court Judgment Reversed and Remanded.

M. Joe Crosthwait, Jr., Midwest City, Thomas A. Wallace, Oklahoma City, for appellant Crosthwait.

Floyd W. Taylor, Taylor & Manchester, Oklahoma City, for appellee.

LAVENDER, Vice Chief Justice.

We decide whether an attorney representing a party in a divorce action may in his own right pursue attorney fees against the opposing party after a divorce decree is issued in which attorney fees are reserved for a later hearing, but prior to the hearing

the attorney's client dies. We hold both that the trial court has jurisdiction to hear the issue of attorney fees and the attorney has standing to pursue the matter under the facts of this case.

FACTS AND PROCEDURAL HISTORY

Appellant, M. Joe Crosthwait, Jr., (attorney) represented Cynthia P. Swick (wife) in a divorce action against appellee, Edward Eugene Swick (husband). The wife's petition for divorce requested her attorney fees be paid by husband. The trial court's temporary order required husband to pay temporary attorney fees, but this order was later modified, reserving the award of attorney fees for hearing on the merits. The trial court issued a divorce decree on June 30, 1989 granting a divorce, which also included among other things, a division of property, assets, liabilities, as well as an award of alimony to wife, and an express statement reserving attorney fees for a later hearing. The wife died later that evening or the next day. Attorney thereafter filed a motion for attorney fees and costs to be assessed against husband pursuant to 12 O.S.1981, § 1276. ¹ According to the response brief of husband to the motion for attorney fees filed in the trial court, a probate action involving the will of wife had been commenced and husband was the executor of the will.

The trial court ruled the administrator of wife's estate was the correct party to bring the motion for attorney fees and that while an attorney, in his own right, may move to collect fees already awarded him, he may operate only as a representative of his client to ask for a fee. The Court of Appeals affirmed concluding attorney lacked standing to press the matter in the trial court. We previously granted certiorari.

LOWER COURT AUTHORITY ANALYZED

The trial court relied on Potter v. Wilson, 609 P.2d 1278 (Okla.1980), as the basis for his ruling. The reliance is misplaced. Potter does not address the issue of an attorney's standing to pursue fees in a divorce action. Potter involved a husband bringing an action against his ex-wife to hold her in contempt for failing to comply with a court order which gave her title to a jointly owned enterprise, required her to assume the outstanding indebtedness of the business and hold the husband harmless on the debt. In differentiating such a debt from other monetary liabilities potentially involved in a divorce action we merely stated that attorney fees awarded by the court in a divorce action are accessory to and in the same category as the obligation to pay support alimony. Id. at 1281. Husband apparently attempts to argue here (and the trial court apparently agreed) that because counsel fees, like support alimony, are generally thought of as being status based liabilities and awarded in divorce litigation based on need, once the person claiming entitlement to the fees dies, there can no longer be recovery because, obviously, a dead person can no longer have a need for the fees. In our view, this is a much too simplistic way to look at the issues before us because it ignores the fact the attorney who has rendered services also has a personal stake in the outcome of any attorney fee award as we will explain below. We, thus, do not believe Potter answers the issues present in this case.

The Court of Appeals, rather than relying on Potter, relied partially on Kelly v. Maupin, 177 Okla. 44, 58 P.2d 116 (1936), to support their affirmance of the trial court. Kelly held an attorney has the right to enforce through contempt proceedings an order requiring a husband in a divorce action to pay his wife's temporary attorney fees even though the wife had dismissed her divorce petition. The Court of Appeals correctly recognized, however, Kelly limited its holding to the situation where an order awarding attorney fees had already been made prior to dismissal. They note Kelly cites Rogers v. Daniel, 92 Okla. 47, 217 P. 881 (1923), for the proposition a wife's attorney could not maintain an independent action against the husband to recover attorney fees where the divorce case was voluntarily dismissed by the wife prior to the order awarding the fees. The Court of Appeals, thus, used Rogers to hold here, absent an order directing a husband to pay his wife's attorney fees, an attorney lacks standing to prosecute any claim for fees independent of the wife's own application for such fees or independent of the wife's personal representative's application for such fees in a case where the wife has died post-divorce decree. We believe the Court of Appeals erred in such view. Rogers is not controlling here because in Rogers there was no longer any pending action when the fees were requested, while in the present matter the divorce case was still pending when the fees were requested, although it had progressed to a post-divorce decree stage. This distinction is critical to a correct determination of the instant situation. ²

THE TRIAL COURT STILL HAD JURISDICTION AFTER THE DEATH OF

WIFE AND ATTORNEY HAD STANDING TO PURSUE ATTORNEY FEES

In Oklahoma the death of a spouse terminates a divorce action if the death occurs before the entry of the final divorce decree. Pellow v. Pellow, 714 P.2d 593, 597 (Okla.1985). However, if the trial court has entered a final divorce decree, the death of a spouse thereafter has no legal effect on the status determination of divorce. Id. at 597-598. Pellow also recognizes the general rule that the death of a party in a divorce action after the rendition of the decree granting a divorce does not prevent a judicial review of the decree where property rights are involved. Id. at 598. Pellow held that, although the wife could not challenge on appeal the granting of the divorce because she had not raised error as to the issuance of the divorce in the trial court, issues preserved in the trial court concerning a property settlement agreement were subject to appellate review. In Pellow the personal representative of decedent's estate was substituted for the appellee deceased husband who died during pendency of the appeal. Id. at 594-595.

We also made clear in Chastain v. Posey, 665 P.2d 1179 (Okla.1983), that where a judgment of divorce is issued and neither party attacks in a motion for new trial or on appeal the granting of the status of divorce, that part of the decree is final as of the date of rendition. Id. at 1181-1182. In Chastain the husband died post-decree and during the pendency of motions for new trial. Id. at 1180. Husband's executor was substituted as the defendant in the divorce action and participated in the appeal which concerned issues dealing with the divorce decree's division of the parties' property. These cases clearly delineate that after a decree is entered the death of a spouse does not abate the proceeding and issues which might inure to the benefit of one spouse or the other or the estate of a deceased spouse, such as the propriety of the property division ordered by the trial court, still pend after the death and an appeal as to such issues may be maintained.

We have also held outside the confines of a death of one of the parties to a divorce action that a trial court has jurisdiction to direct one spouse to pay the other spouse's attorney fees after the divorce decree has been entered in the trial court and while an appeal from the judgment is pending in the appellate court, regardless of whether the issue of attorney fees was omitted from the terms of the journal entry and regardless of whether the issue was reserved for later hearing, provided only that the issue was then a viable one and not theretofore resolved by the trial court. Harmon v. Harmon, 770 P.2d 1, 3 (...