151 S.W.2d 1097 | Mo. | 1941
Lead Opinion
On March 14, 1934, Theresa R. Bucknam, plaintiff nisi and for convenience sometimes designated appellant here, obtained a divorce from Robert H. Bucknam, in Jackson County, Missouri. The decree awarded her the custody of their minor son, David Horton Bucknam, born February 19, 1933, $150 monthly alimony and $50 monthly maintenance for the son. She, experiencing difficulty in collecting the alimony and maintenance, in the latter part of 1934 employed Francis C. Downey, an attorney, movant nisi and for convenience so designated, to collect said alimony and maintenance. On June 10, 1939, a contract of settlement was effected between said Theresa and Robert H., Robert H. agreeing, among other things, to pay $10,000 to Theresa. Mr. Downey filed a motion seeking to charge the $10,000 with the payment of his fee. The court, on a quantum meruit basis, allocated to him $5,000 of said $10,000. Mrs. Bucknam contends Mr. Downey is not entitled to charge any fee against said $10,000. Mr. Downey contends for a charge of $8,281.04. Each has appealed from the judgment nisi.
Mr. and Mrs. Robert H. Bucknam were married February 12, 1929, in Massachusetts. Thereafter, Robert H. became the beneficiary of a spendthrift trust, administered in Boston, Massachusetts, created by his mother's will and, under its provisions, was to receive the corpus of the trust estate on December 20, 1939. He married a second wife soon after the divorce of March 14, 1934. We shall not detail the efforts of Mr. Downey to collect. From the record, his services continued until the consummation of the contract of June 10, 1939, and included investigations of the laws of Massachusetts, Connecticut, Florida and Missouri. Among other efforts, was an unsuccessful attempt to subject the spendthrift trust to the payment of Theresa's claims. [Bucknam v. Bucknam,
Thereafter, said Theresa and Robert H. undertook to adjust their financial differences by the contract of June 10, 1939, which, in so far as deemed material, we outline in brief. This contract was contingent upon Robert H. attaining the age of 30 years; that is, being alive on December 20, 1939, and receiving the corpus of the aforementioned trust estate. Upon the performance of the covenants thereof by Robert H., Theresa, among other things, was to satisfy of record the judgments for alimony and maintenance. Robert H. agreed to pay Theresa $10,000 on or before December 20, 1939, and she was to receive $1,270.09 of certain moneys on deposit with the Plaza Bank of Commerce, and Robert H. was to establish a $15,000 trust estate for the use and benefit of their son David Horton Bucknam, the material details of which are more fully stated hereinafter.
The contract explicitly provided, in part: "8. Said Theresa may, if she shall so desire, after making payment of her counsel fees and other legal expenses from and out of the sum of Ten Thousand ($10,000) Dollars, to her to be paid by said Robert as hereinabove provided, pay over to the Trustees of the David Horton Bucknam trust" any portion of said $10,000 remaining in her hands; and as we read paragraph "17" thereof, she released Robert H. from any possible liability for said fee.
On November 22, 1939, the same being the ninth day of the November, 1939, term of court, the Circuit Court of Jackson County upon findings that said contract of June 10, 1939, was voluntarily and legally entered into and executed by the parties thereto; that appellant had received the $1,270.09 mentioned in said contract; and that said contract was fair and just, entered an order approving said contract, ordered that the judgment of $50 monthly for the maintenance of David Horton Bucknam be vacated, set aside and for naught held upon the establishment of the $15,000 David Horton Bucknam trust; ordered that Robert H. stand discharged of all obligations to Theresa for alimony and that Theresa satisfy of record the judgments theretofore entered awarding periodical and gross alimony "upon the payment to the plaintiff, or payment into this court for the benefit of plaintiff" of $10,000, the court retaining jurisdiction to make such additional orders and decrees as might be necessary to effectuate said contract of June 10, 1939.
As indicated, Robert H. Bucknam was not entitled to receive the corpus of the trust estate established by his mother until December 20, 1939. Thereafter, on January 12, 1940, the same being the fifth day of the January, 1940, term, the court, upon findings that said Robert H. had fully performed his covenants of the contract of June 10, 1939, and upon the further explicit finding "that the parties to this cause have agreed and consented to this order," ordered that *1043 the orders contingent upon Robert H.'s performance in the order of November 22, 1939, be effectuated and also explicitly provided: "It is further ordered, adjudged and decreed that the clerk of this court shall retain in his possession the said sum of Ten Thousand Dollars ($10,000), heretofore deposited with him by the defendant for and on behalf of the plaintiff, until the further orders of this court." On said January 12, 1940, the prior orders, judgments and decrees were satisfied of record on behalf of appellant. On January 16, 1940, Mr. Downey filed his original motion, an amendment thereof being under review here.
Mrs. Bucknam asserts that the final decree for alimony was entered in the November, 1939, term of the Jackson County Circuit Court; that Mr. Downey's motion was not filed until the January, 1940, term of said court, and, therefore, the court was without jurisdiction to entertain said motion.
[1] The $10,000 was in custodia legis when the order of the January, 1940, term was entered. Said order explicitly recited that the original litigants agreed and consented to its provisions, which included the provision that the clerk of the court retain said $10,000 subject to the further orders of the court. The contract of June 10, 1939, contemplated the payment of movant's fee out of the $10,000 to be received by appellant. She accepted, did not repudiate, performance of the contract in accord with said order of November 22, 1939, and does not question the propriety of the deposit of said $10,000 in court or that portion of said order authorizing said deposit. Judgment debtors may protect their rights to a proper satisfaction of record by placing the money in custodia legis and shift from themselves to the law and the court the responsibility of determining the rights of interested parties in and to the fund. [Lawson v. Missouri Kansas Tel. Co.,
[2] Appellant directs our attention to authorities recognizing the State's interest in divorce proceedings (State ex rel. v. Hostetter, *1044
Whether we are materially concerned with any contingent fee contract remains to be developed. The issue for the present is limited to the propriety of the charge, on a quantum meruit basis, for movant's professional services against the $10,000 deposited in court. The contract of June 10, 1939, contemplated the full and final adjustment of Robert H.'s obligations to appellant and their minor son, including any possible responsibility on his part for movant's fee. [See paragraph 8 of the contract, mentioned supra.] The parties so understood its provisions. The court approved it on November 22, 1939. Said contract, according to the litigants, must be considered either as discharging Robert H.'s obligations under Sec. 1519, supra, for alimony and maintenance to Theresa and for maintenance of their son, or as constituting a valid settlement of property rights between said Robert H. and Theresa. In either event the contracting parties contemplated movant would receive his compensation out of the $10,000 therein mentioned, and said provisions of the contract received the sanction and approval of the court along with the rest of the document.
[3] If the $10,000 be viewed as an approved allowance to a divorced wife under Sec. 1519, supra, said allowance differed from the usual allowances of alimony in that by agreement between the former wife and husband it was subject to the payment of the attorney's fee. Such a contract, if approved by the court, permits of the court exercising a sound discretion, fully protecting the public's interest; does not infringe upon the legal obligation of a husband to maintain his wife; and legally does not subject an award to the wife for alimony and maintenance to an unauthorized charge for attorney's fee. "An attorney is entitled to a lien on the alimony secured by him for his client in a divorce proceeding but only to the extent of his fees and costs taxed and included in the allowance of alimony. He cannot enforce any lien against the remainder of the allowance, either for special fees in that case or otherwise." [3 Am. Eng. Ency. of Law (2 Ed.), p. 456, par. d; quoted in Hilleary v. Hilleary, supra, Consult *1045 7 C.J.S., p. 1173, nn. 23, 24; 6 C.J., p. 779, sec. 388.] The first sentence of the quotation is in accord with the logic underlying State ex rel. v. Hostetter (Banc), supra. In the instant case we should not overlook that the divorce was faitaccompli and appellant was a femme sole when she employed movant and the transactions here involved occurred. The point is ruled in favor of movant.
[4] Under date of March 2, 1938, appellant wrote movant stating she understood and would abide their agreement with respect to his fee and: "Your fee shall be 20% of all sums collected in the course of the proceedings up to $15,000, of whatever is received over and above that amount you take 50%." Movant asserts error in that the allowance should have been $8,281.04 (after crediting $254 paid) in accord with his client's contract. The court's award of $5,000, after having the cause under advisement, was not on special assumpsit but under indebitatus assumpsit as for aquantum meruit of compensation. In the course of his printed argument movant states his motion was for specific enforcement of appellant's agreement of March 2, 1938. The motion is not analyzed and authorities are not cited to the statement. Movant has the burden upon appeal with respect to this error, if error. Trial courts should not be convicted of error upon mere dogmatic assertions. The motion was in one count. [Consult Globe Light
H. Co. v. Doud,
[5] Appellant contends the allowance of $5,000 on a quantummeruit basis is excessive and, in her opinion, should be reduced to $2,000 on the theory movant is limited to 20% of the $10,000 directly received by her. Movant says the $5,000 allowance is inadequate by $3,281.04. That this court may determine the issuede novo is not questioned. [Robertson v. Manufacturing Lumbermen's Underwriters,
The judgment is reversed, to be modified accordingly. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.