*1 HARMON, Sr., Harvey Appellant, L. HARMON, Appellee.
Dorothy R. 55660, 56279.
Nos.
Supreme Court Oklahoma.
Sept.
Rehearing July Denied Tullius, Pagg, Brandon Tul-
Michale J. & lius, City, appellant. *2 Associates, Berry any of unresolved issues to Bill & James be determined James W. appellee. the case. Berry, City, BillW. lodged appeal Husband to this Court
LAVENDER, Justice: 27, June 1980. from the of Husband/appellant appeals from a motion, the On wife’s trial court conduct- entered in a divorce of the trial court ment 21, 1980, hearing on with ed a November separate proceeding and thereafter filed a fees, awarding attorney litiga- reference to attorney fees to appeal from an award costs, and on tion fees and other December wife/appellee subsequent entered 12,1980, the court to wife an trial ap- The entry original decree. two attorney paid by fee to be peals $12,000, consolidated. The cause was were to credited sum of be Appeals, Division assigned payment previously to the Court of the award for 2, opinion. rendering of an Wife made under order of the court. certiorari, certiorari petition filed timely appeal from the Husband filed a granted by this Court. previously We award,” appeal “second and this was con- specifications of now consider the various appeal by the first taken solidated with postulated by husband. error husband. urges that there can be but one
I. cause; journal entry that 18,1980, July appears on its face to be a THE OF TRIAL JURISDICTION issues; determining complete judgment all AWARD ATTORNEY FEES COURTTO at trial of that “reservation” wife PRE-APPEAL LEGAL TO WIFE FOR attorney fee issue was ineffectual be- SERVICES. ruling cause the trial court made no there- Husband/appellant alleges that the on; original journal entry and since the trial court was without any made no reservation of issues for later attorney fees to the wife after the award determination, juris- no the trial court had entered in initial formal divorce decree was attorney diction to thereafter award fees to cause, journal entry judg that where up to the wife for services rendered attorney ment was silent as to fees and lodging appeal. time of the of the first attorney to reserve the issue of failed disagree. for future determination. Frankovich,1 (587) In Frankovich v. 18, The case was tried on June appeal did not held on trial, During the attor- course wife’s failing grant any temporary err in alimo- ney open “Judge, I stated court: have ny any temporary attorney fee for de- day, reminding myself been I’d like the attorney noth- fendant’s where there was time, provided record to reflect at this ing in the record to indicate that question I want to reserve temporary any matter allowances fees, attorney litigation expense, suit presented kind was ever to the trial money things like that....” The court, nothing in the record to indi- any ruling record does not reflect formal cate that made known to the defendant court, on the “reservation” trial court the action which defendant any objection opposing thereto counsel. desired the trial court to make and his The trial court his “Memorandum” of grounds The case us is before therefor. 27, 1980, decision no men- filed June made clearly distinguishable. pre-trial The order any tion of matters to reserved or to be clearly sought attorney disclosed that wife determined at a later date. And no fees. while trial court made divorce, prepared ruling upon purported The formal decree of formal wife’s “reser- attorney July attorney and filed on of the issue of fees at the vation” trial, attorney made no mention of fees or it at least served as notice that her stage pertaining still a issue in the are those ‘temporary fee was viable adjustment adjudicated rights case and had been waived. pending disposition appeal.” the final question of We next turn to the whether 18,1980, journal entry July preclu- “ancillary” “accessory”' status of the trial court’s later consideration sive support, of such matters as and determination of the fee is- alimony and counsel fees an inter- requires This in turn consideration of sue. spousal appellate contest their relation *3 attorney in the nature of their relation to the remainder of a divorce decree to a decree of divorce rendered before their ment was further clarified in Wilks v. Wi award. lks wherein we held them to be an “acces provides sory” provisions in per- Title 12 other of a divorce O.S.1981 § part: judgment decree superse- tinent reference to *“ * * (763) In Wilks deas thereof. we said: granting a divorce in favor of on appellate “Both the trial and husband, both, may courts the the wife or the provisions payment make for may require support, to court the husband wife alimony expenses of the oth- and counsel fees pay such reasonable an inter- prosecution spousal appellate in er or defense of contest.” may just proper as consid- action light In foregoing, we hold that a ering respective parties and the jurisdiction trial court has to direct one ” each; means and .... spouse to spouse’s attorney the other Jones,2 Jones v. In the case we said: judgment fees after has been entered in question whether, “The before us is in the appeal lower court and while an from action, a matrimonial the trial court has judgment pending is in appellate authority post-de- to entertain wife’s regardless of whether the issue of application alimony cree for and counsel attorney fees was omitted from the terms appeal fees after the husband’s has been journal entry and re- brought here from the divorce decree. gardless of whether the issue therein was post-decree hold that in the state of a determination, provided reserved for later alimony matrimonial in case which no only fee issue is then a was allowed the trial court is nonetheless viable issue in the case and not theretofore authority, subject always vested with to resolved order of the trial court. In so reexamination, power our to consider holding, distinguish between matrimo- application provisional relief or actions, nial actions and other civil adjustment interim adjudicated prop- Jones v. fully explained reasons more erty rights, or custodial to remain Jones, supra, Wilks, supra, v. Wilks appeal pending.” effect while the is particularly light of the 1969 amend- pertaining ment to the appeal And we further said: statute to an (12 1282) litigation in divorce O.S.1981 law, uniformly “Pre-1969 case held which Thus, this Court Wilks. construed that the trial court’s ceased distinguishable the case before us is from suspended appeal or stood when an had Wabaunsee v. Armstrong4 wherein we brought, been constitutes obsolete lore. held that in non-matrimonial 'actions where post-1969 appellate procedure Our af- supersed- of the trial court is fords a convenient framework within bond, supersedeas ed appellate which or where no bond both trial and courts required allowed, recovery share in the is where no responsibility exercise of resolving ‘ancillary’ authority the trial court is issues that are without to pending appeal. litiga- ap- matrimonial award cost and fee after an tion, among judge fully peal lodged has properly acts been in the Su- empowered perform Court, post-appeal preme appeal pend- to and while the Okl., 4. Okl., (1980). 584 P.2d Okl., 632 P.2d 759 issuing mg prior opinion exigencies particular “The of a case court, can be best determined thereon. mandate jointly acquired and unless the division of property made the trial court in a II. divorce action is inequitable, the evidence and is it will not INTEREST IN PROFIT- HUSBAND’S appeal.” be reversed or modified on PLAN JOINTLY SHARING AS AC- QUIRED PROPERTY. And we further said with reference to a trial court determination as to many years contribut (653): attorney fees in a divorce case profit-sharing percent plan ed ten to a each (Okl., “Phillips Phillips v. 556 P.2d year corporation while a of which he is a (1976)) factually is a case similar employee shareholder and contributed fif the case at bar. There we said: ‘In percent employee’s salary teen each McCoy McCoy, 429 P.2d plan. The value of husband’s *4 (1967)this court said the trial court was of the determined at the time divorce was vested with discretion. It wide should $53,000. Husband’s interest parties, consider the of the cir- jointly treated the trial court as ac case, including cumstances in the quired property and to husband property respective means and offsetting property being equal with parties property under the division. Be- awarded to wife. Husband’s assertion of reversed, fore such an order will be treating jointly error in said interest as clearly appear must that the trial court ” acquired property fully answered Car abused its discretion.’ penter Carpenter,5 v. and is without merit. bar, In years at husband was 59 case While there was evidence that wife also age parties and wife was 58. The had participated profit-sharing plan in con- years. been married each other for 37 employment, her nection with a review of marriage The three children born of the are the record discloses no that husband made grown. good parties Both are in health. therein, any claim of interest and no evi- practicing attorney Husband is a presented. dence as to its value was years experience. Wife was a homemaker supported by Claims of error not the record marriage, most of the but has agency will not be considered this Court on worked a travel since 1977. appeal.6 dispute there While was a considerable property,
as to the value of much of the
acquired
jointly
trial court awarded the
III.
property as follows:
TRIAL COURT’SDIVISION OF JOINT-
TO HUSBAND
ACQUIRED PROPERTY,
LY
AWARD
Mustang
1,000.
$
OF SUPPORT ALIMONY AND ATTOR-
Golf &
Club
City
Country
Stock
8,000.
NEY FEES.
Professional
1,700.
Stock
Corporation
Sharing
($106,-
Pension & Profit
Plan
Husband;.challenges the division of
000) discounted
53,000.
60%
parties,
support
between
checking
First National Bank
1,700.
savings
National Bank
113.
Liberty
wife,
alimony award to the
and the order to
L
Continental Federal S & account
100.
husband to
fee as made
Heritage
American
stock
768.
Life
Globe
stock
18,081.
and determined
the trial court.
O.G.&E. stock
14,225.
All Standard stock
0.
(651)
Carpenter
In
Carpenter7
v.
we
Neveen Bond Fund
5,000.
said:
Prudential Ins.
0.
policy
7. Supra,
5.
6. Matter 604 P.2d HUSBAND
TO IV. FAILURE OF TRIAL COURT TO RE- checking 58. Bank Fidelity $ 24,826. Paper National Commercial QUIRE HUSBAND’S JUDGMENT Liberty 9,968. stock Fidelity Corp. TO BEAR LIEN INTEREST. 2,007. stock Ford Owens Liberty Puget 4,081. stock Sound Power alleges Husband error on the 5,000. Auth. Bond Dam Grand River of the trial court in its failure direct that $149,690. to Husband Total awarded the home husband’s awarded on TO WIFE bear from the shall date of 750. lots Unimproved $ until payment. its 2,000. Eldorado Cadillac points out that the lien remain could unen checking 3,300. Nichols Hills Bank long years (until savings forceable as seven L 7,700. S & Continental Federal 1,703. Paper American First Commercial years age) yielding wife is without 27,861. Paper Bache Commercial any upon return his frozen 21,279. Market National Cert. Money First home. 2,981. stock Electric American 1,452. Insilco stock impressed The lien thus is in the nature 1,275. Electric stock Union lien, of an equitable the terms of which are 2,147. Bestaur stock 1,337. O.G.&E. stock governed by contract but Insurance policy New York Life upon equitable instead are based considera- fund Personal Retirement tions. 140,000. contents The home and $215,085. to Wife: Total awarded Sims,8 (696) Sims said: court awarded the “As stated in the case Hanscom v. ment wife for to be- Hanscom, (6 supra, Colo.App. 97, 39 P. *5 upon come due upon sale of the 885) home or equity, independent court of of becoming the years wife’s has to award alimo- age. of That ny; necessarily it must and follow that judgment upon was made a lien the home. by such a court can enforce its orders The total awarded to the wife thus impressing judgment upon its as a lien $32,700 by making reduced the total defendant, realty by owned the if in its $188,385, compared wife as with the total opinion it is in the of furtherance what is $32,700 (including the just.” fair and money $182,390. judgment), the sum of And we further said: support Wife alimo- was further awarded equitable findings “In an the action of $65,000 ny payable of at month per $500 sustained, the should be un- months, next and husband was appears findings clearly less his are it ordered in fee the weight evidence; against the of the and $1,000 being sum of credit findings the of the trial court should be previous payment allowed for or- made persuasive, strongly and should not be der of court. unless Supreme set aside the Court can Upon of consideration the entire record say, equity good conscience, in and that us, before we do not find that the division the conclusion reached the trial court jointly acquired property the made clearly against weight the of the evi- trial court to so dence.” inequitable justify the evidence nor so as to Benson,9 (Syllabus Benson v. we'held appeal. reversal on Neither do find Court): by2 that court determination contract, express “In the absence of an payment upon considera- lien, equitable upon those max- based case, tion of all of the circumstances in the equity ims lie at the foundation of which including property the means and by implication jurisprudence, may arise respective parties to be a clear abuse general right out of considerations part discretion on justice, the trial court. applied and where as to the rela- 309, 8. 150 Okl. P. ALR 414 9. 194 Okl. contrary good and or circumstanc- the evidence parties and the of the
tions conscience; same is affirmed. and the dealings, there is some obli- their es of duty to be enforced.” gation of the trial court is af- judgment firmed. equitable is further lien The nature of an in Hill v. Hill10 the case of
illuminated and Justices Don Barnes Chief Justice following: Doolin, Irwin, Opala, Marian Pat John B. disqualifi- certified their and Alma Wilson equitable lien that it is of an “It is said in this cause. Honorable Clifford cation subject right property not a Green, III, Honor- Hopper, Honorable W.O. right nor a of action of the lien matter Wiseman, Honorable Robert A. Jane able upon posses- therefor, depend nor does Tony Graham were Layden, and Honorable sion; right to have the merely a but is in Special to serve their appointed Justices q, subjected stead. _” claim, debt the final determination of A HARGRAVE, J., SIMMS, V.C.J., and rights of the to an action.11 LAYDEN, HOPPER, GREEN and par- upon the of the home Husband’s Justices, Special concur. part rendered ties was a trial court. HODGES, J., and WISEMAN Justices, GRAHAM, in Special concur Laws, 1979 Ch. 60 Husband cites part part. dissent in 727) in (Amended, 12 effect at O.S.1981 § judgment, the time of rendition HODGES, Justice, concurring part part: judg- “All provides pertinent which dissenting part: of record ... shall bear ments of courts alimony for a I dissent to the award of (12%) percent interest at the rate of twelve 121 months. period of date of rendition.” per year, ... from urges the statute mandates that imposition upon Justice, GRAHAM, concurring Special disagree. The issue thus dissenting part: ment lien. We *6 presented is whether part, I concur in but dissent as interest; required but statutorially to bear Appellee’s attorney fees to award of all rather, whether the trial court’s determina- being an paid by Appellant, this abuse (that equitable of a condition in the tion judge. of discretion interest) clearly against the not bear Wiseman, I to state that am authorized evidence, measured weight of the Justice, Special concurs with the views ex- good conscience. We cannot pressed in this dissent. equitable speculate, appeal, on as to the might prompted have considerations which specify lien not
the trial court to interest, and the record before us is
bear of the relation
devoid of what consideration parties their circumstances im-
pelled trial court to direct the non-inter- portion bearing aspect
est of that eq-
judgment. therefore hold that the imposed upon the home of lien as
uitable the trial court’s as a contrary
judgment is not 11. 12 O.S.1981 681; 10. 185 Kan. Laughlin, State v. P.2d 683