Thorn v. Kelley

• Decision Date: 06 April 1965
• Docket Number: No. 51598,51598
• Citation: 257 Iowa 719,134 N.W.2d 545
• Parties: Robert J. THORN, Plaintiff, v. Honorable Ed J. KELLEY, Judge of the District Court in and for Wright County, Lowa, Defendant.
• Court: Iowa Supreme Court

Page 545

134 N.W.2d 545

257 Iowa 719

Robert J. THORN, Plaintiff, v. Honorable Ed J. KELLEY, Judge of the District Court in and for Wright County, Lowa, Defendant.

No. 51598.

Supreme Court of Iowa.

April 6, 1965.

Willie & Willie, Eagle Grove, for plaintiff.

Maddocks & Knoshaug, Clarion, attorneys for defendant and plaintiff in the lower court, Florine Thorn.

GARFIELD, Chief Justice.

We granted certiorari to review the taxation against a husband of fees for his wife's attorneys upon dismissal by the court, after trial, of an action for divorce brought by the wife. The husband, defendant in the divorce action, is plaintiff in this certiorari action. See rule 307, Rules of Civil Procedure, 58 I.C.A.

Plaintiff's wife sued him for divorce, alleging he had been guilty of such inhuman treatment as to endanger her life. After a contested trial the court's final decree held plaintiff had failed to carry her burden to prove such treatment, her petition must be dismissed at defendant's (plaintiff in certiorari) costs and as part of the costs fees of $250 for her attorneys shall be taxed. Only the taxation of attorney fees is now challenged.

In Wald v. Wald, 124 Iowa 183, 99 N.W. 720, the facts were identical with those here except the alleged cause for divorce was habitual drunkenness. Upon appeal of the husband, who was successful except for the allowance against him of attorney fees for plaintiff wife, we held: 'No order for suit money was made until after a trial on the merits, and a judgment that the plaintiff was not entitled to a divorce. The court then had no power to make the allowance under the facts presented in this case. The same principle is involved here that was considered and determined in Sherwin and Schermerhorn v. Maben, 78 Iowa, 467, 43 N.W. 292.

'We still adhere to the conclusion there reached, and the judgment is reversed.' In Stockman & Hamilton v. Whitmore, 140 Iowa 378, 380, 118 N.W. 403, 404, attorneys brought action to recover from the husband for services rendered by them to the wife in a divorce suit brought in her behalf. After trial the district court dismissed the divorce petition and the wife appealed to this court. She later dismissed her appeal without the consent of her attorneys and contrary to their opinion. A demurrer to the attorneys' petition to recover for their services was sustained and we affirmed the judgment thereon. This is from the opinion: 'II. The court before which a divorce case is tried is clothed with power to award suit money and attorney's fees pending litigation, and before the determination of the merits of the case. Such power is ample protection to the wife, and ample remedy to her attorneys. After the determination of a divorce case upon its merits adversely to the plaintiff, even the court trying such case loses its power to award further attorney's fees. Wald v. Wald, 124 Iowa 184, 99 N.W. 720.'

The Stockman opinion goes on to distinguish Porter v. Briggs, 38 Iowa 166, 18 Am.Rep. 27, and Clyde v. Peavy, 74 Iowa 47, 36 N.W. 883, where the husband was held liable for the wife's attorney fees on the ground the husband in each case brought the divorce action against the wife, charging her with adultery, and the wife was not in court of her own volition. The two decisions last cited are placed on the ground defense of the wife from the charge made against her was a necessary and the law raises an implied promise to pay for the services. Porter v. Briggs states (pages 169-170 of 38 Iowa): 'There may be a wide difference as to the liability of the husband between the case where the wife prosecutes the action and one which is brought by the husband. * * * In order to fix his liability, the services must be shown to be necessary, within the rule we recognize, for the protection of the wife's person, liberty or reputation.'

Read & Read v. Dickinson, 151 Iowa 369, 130 N.W. 160, holds the husband liable, on the authority of Porter v. Briggs and Clyde v. Peavy, both supra, for services of attorneys for the wife in defense of the husband's cross-petition for divorce on the ground of adultery. Thus the rule seems to be that it is immaterial whether the services of the wife's attorney are in defense of the husband's original action for divorce or a cross-petition by him asking such relief. In either event the husband may be held liable for services of an attorney in defense of the charge against her if the necessity therefore appears. Plaintiff in the present certiorari action filed no cross-petition for divorce but merely defended the action brought by his wife.

Wick v. Beck, 171 Iowa 115, 153 N.W. 836, L.R.A.1915F, 1162, Ann.Cas.1917A, 691, discusses the liability of the husband for the wife's attorney fees in divorce cases more fully than any Iowa decision that has come to our attention. After consideration of our earlier opinions and many from other jurisdictions, 'The holding then is that, to entitle an attorney to recover for services rendered the wife in divorce proceedings, it must appear that such services were necessary for the protection of the wife' (page 130 of 171 Iowa, 153 N.W. at page 841).

This is also from the Wick opinion (pages 129-130, 153 N.W. page 841): 'To hold that a wife can commence a suit against her husband for a divorce, without legal grounds therefor, and compel the husband to pay attorney's fees incurred by her in the prosecution of he suit, whether she afterwards dismiss the suit, or whether it is adjudged against her, would not be consonant with reason or the policy upon which the rule of necessaries rests.'

Wick v. Beck, at page 126, 153 N.W. at page 839, thus analyzes Wald v. Wald, supra, 124 Iowa 183, 99 N.W. 720: '(It) was an action for a divorce on the ground of habitual drunkenness. There was a decree denying the divorce. No order for suit money was made until after a trial upon the merits, and the judgment that the plaintiff was not entitled to a divorce. This court said: 'The court then had no power to make the allowance under the facts presented in the case.' We assume that this holding was upon the theory that the judgment against the plaintiff conclusively established that she was not entitled to a divorce, and that there was no necessity for her commencing the action, and the services of the attorneys could not be deemed necessaries for which she could pledge the credit of her husband, or require him to furnish.'

The result reached in Wick v. Beck is that an attorney was denied recovery from the husband even for services rendered the wife in defense of the husband's cross-petition for divorce on the ground it did not appear the services were necessary for the wife's protection.

There is a dissenting opinion in the Wick case. However it states (pages 139-140 of 171 Iowa, 153 N.W. page 844): 'All of our decisions recognize the difference between services rendered by counsel in aid of an action brought by the wife, which fails for some reason, or for no reason, and like services rendered when the action is by a husband against the wife, especially where, as here, not only the good name and the fame of the wife is involved but also her right to support.' The dissent also observes (page 142, 153 N.W. page 845) 'there is much reason for saying that if they (married women) bring divorce suits against their husbands, and are unsuccessful, attorneys should look to them alone for their pay.'

Division IV of the annotation in 25 A.L.R. 354 et seq. is devoted to Iowa decisions on the liability of a husband in an independent action for services rendered by an attorney to the wife in a divorce suit. The rule in Iowa is said to be 'that an attorney may hold the husband liable for legal services rendered the wife in divorce proceedings, where it appears that the services were necessary for her protection' (page 358).

We have considered the precedents cited by attorneys for plaintiff's wife in defense of the certiorari action. McCarty v. McCarty, 169 N.W. 135, 137 (not in Iowa Reports), deserves special mention. The wife there brought suit for divorce, after trial the petition was dismissed and a fee of $500 for the wife's attorneys was allowed against the husband. Upon the latter's appeal from the decree the only question raised regarding this allowance is that it was excessive. The power of the court to make it or propriety of making any allowance seems not to have been challenged. We saw no abuse of discretion in allowing the $500. Since only the amount of the allowance was questioned, the decision cannot be deemed in conflict with Wald v. Wald, supra, 124 Iowa 183, 99 N.W. 720, nor the other opinions which approve it.

We see no escape from the conclusion that unless Wald v. Wald, which has been approved at least twice in later opinions, is to be overruled we must hold the trial court was without power to tax against the husband a...