STATE of Indiana, ex rel. Richard L. PAXTON, Relator, v. The PORTER SUPERIOR COURT, The Honorable Roger V. Bradford, as Judge thereof, and The Honorable William W. Andersen, Jr., as Commissioner thereof, Respondents
No. 684S242
Supreme Court of Indiana
Sept. 12, 1984
468 N.E.2d 1205
III.
Defendant finally argues that he was denied his right to а fair and impartial jury because of the alleged misconduct of one juror. The record shows that three relatives and friends of defendant testified that they saw one juror, Dorothy Pazdur, talking to a woman outside of the courtroom, prior to jury selection and that this woman was later identified as the victim‘s aunt. On voir dire, Pazdur denied knowing the victim, the defendant, or thеir families.
At a hearing on defendant‘s motion to correct error, Pazdur explained that she had arrived a little early on the morning of jury selection and sat on a bench in the hаll. Another woman, who was a stranger to Pazdur, also sat down and started talking to her about the weather, where she lived, and her children. Pazdur explained that after a few minutes, the оther woman got up and went over to a group of people which included the victim, saying “I‘m his aunt.” At one point Pazdur answered the following question:
Q. “Isn‘t it true the person you were talking to was the complaining witness’ [sic] aunt?”
A. “She said she was his aunt after we were talking, but we didn‘t talk about the case. She said she was—I don‘t know—training to be a lawyer and she came to thе courthouse all the time and listened to different cases.”
We find nothing in the record to show that Pazdur was not truthful on voir dire when she stated that she did not know the victim or his family. Certainly, a few minutes of conversation on trivialities do not mean Pazdur “knew” the victim‘s aunt. There was no evidence that Pazdur ever discussed the instant case with the victim‘s aunt or anyone else. We can disturb a verdict of guilty on account of the alleged misconduct of a juror only when it is shown that such misconduct was prejudicial to the rights of the defendant. Sceifers v. State, (1978) 267 Ind. 687, 373 N.E.2d 131; Myers v. State, (1960) 240 Ind. 641, 168 N.E.2d 220. There is no evidencе here to contradict Pazdur‘s statement that she did not know the victim or his family or show that she could not give a fair and impartial verdict. We find no showing of prejudice to defendant which would require a reversal of the guilty verdict.
For all the foregoing reasons there was no trial court error and the judgment of the trial court should be affirmed.
Judgment affirmed.
GIVAN, C.J., and DeBRULER, PRENTICE and PIVARNIK, JJ., concur.
Calvin K. Hubbell, Valparaiso, for relator.
Glenn J. Tabor, Valparaiso, for respondents.
On Junе 5, 1984, this Court voted 3-2 to deny relator‘s Verified Petition For Writ Of Mandamus And Writ Of Prohibition.
The facts are these. On January 6, 1982, Richard Paxton, relator and husband of Dorothy Paxton, filed a Petition for Dissolution оf Marriage. The bulk of the assets were in the name of the husband alone. In the ensuing year, it became clear to the trial court that the wife was very ill and that she was suffering from a terminal case of breast cancer.
On January 14, 1983, the wife sought leave of the court to cross-file for dissolution and to file a petition for allowance of attorney fеes and related expenses. This was done and the husband then petitioned the court to dismiss his initial petition. The court set a date for an evidentiary hearing on all of these petitions, including the one for fees and expenses. The commissioner respondent heard the evidence and took the entire matter, including attorney fees under advisemеnt. Mrs. Paxton died prior to the issuance of any order. After her death her counsel petitioned respondent court for an order compelling relator to pay to coun-
The general rule is that divorce proceedings terminate in their entirety upon the death of one of the parties. However, there are certain exceptions to this general rule. See State ex rel. Smith v. Delaware County Superior Court, (1982) Ind., 442 N.E.2d 978. Several jurisdictions have held that a deceased spouse‘s attorney may not recоver fees for services rendered in a divorce action by applying to the court in which the divorce suit was pending at the time of the death of his client. See, e.g., Hogsett v. Hogsett, (1966) Mo.App., 409 S.W.2d 232. However, other jurisdictions have taken the opposite view, which we deem to be the better view. See, Williams v. Williams, (1971) 59 N.J. 229, 281 A.2d 273.
In the Williams case, the New Jersey court, after first recognizing the general rule of tеrmination of a divorce action upon the death of one of the parties, then drew a distinction between an order for counsel fees and costs of the litigation and a continuation of the action for the purposes of settling alimony or property disputes. They pointed out the wife‘s estate remains liable to the attorney as the contracting party. The only consequence of the abatement doctrine is to relieve the husband of any liability for such expenses. They observe that the exemptiоn of the husband in such circumstances would be unfair and incompatible with the policy underlying the grant of counsel fees and costs. See also Ferguson v. Ferguson, (1982) Fla.App., 423 So.2d 509.
The statutory law in Indiana gives the trial court wide discretion in allowing the payment of reasonable cost from one party to the other for maintenance and the cost of defending a suit for dissolution. See
Thе power of the courts to order support for a wife pending a divorce and an allowance for her attorney fees and expenses associated with the maintaining of the divorce are founded in the common law obligation of the husband to support his wife. O‘Connor v. O‘Connor, (1969) 253 Ind. 295, 253 N.E.2d 250.
The granting of attorney fees and legal expenses is, in fact, not a trial and dоes not include any necessity of examining the issues of the case. Nor is it related to the merits of the action. Stewart v. Stewart, (1902) 28 Ind.App. 378, 62 N.E. 1023.
Consequently, the amount of the attorney fees awarded does not, strictly speaking, form a part of the judgment or decree in the cause. It is not required to be supported either by conclusions of law or findings of fact. Smith v. Smith, (1953) 124 Ind.App. 343, 115 N.E.2d 217.
In the case at bar, the assets belonged basically to the husband. The trial court most certainly had jurisdiction to make a determination that the wife was entitled to support, attorney fees and сosts of the litigation. These debts were, in fact, incurred by the wife prior to her death and pending the action for dissolution. To now hold that her death which terminated the divorce action also terminated any ability of the wife‘s counsel to recoup his fees and expenses from the deceased wife‘s husband would work a gross miscarriage of justice аnd would be a misapplication of the general principle that the action for dissolution is terminated upon the death of one of the parties. The trial court not оnly had jurisdiction to proceed to adjudicate the husband‘s responsibility in this case, but he had the duty to do so.
Relator‘s Petition for Writ of Mandamus and Prohibition is denied.
HUNTER and PIVARNIK, JJ., concur.
DeBRULER, J., dissents with separate opinion in which PRENTICE, J., concurs.
When a contract of employment is made between lawyer and client who is a party to a dissolution action, the basic obligation to рay the lawyer‘s fee is that of his client. If as part of the arrangement, the lawyer provides services without being paid beforehand by his client, in reliance upon the client‘s promise to pay in the future, or upon the power of the trial court to order and enforce payment of the fee by an opposing party, he assumes the risk that he may never in fact be paid. If thereafter the client cannot pay and the trial court does not make the contemplated order, lamentations are in order, but the lоss is within legitimate expectations.
Here the death of Mrs. Paxton intervened between the receipt by her lawyer of a $1200 provisional order and the rendition by the trial court оf a further such order. Her death terminated the dissolution proceedings and the trial court lost its jurisdiction to make further enforceable orders. In Re the Marriage of Hilton, (1984) Ind. Apр., 459 N.E.2d 744. As I see it, Mrs. Paxton‘s lawyer is left with enforcing his right to payment under the contract for services through the probate court where he, like all of her other creditors, can file a claim. As I recall the oral presentation before this Court, her lawyer did not wish to pursue that course, since Mr. Paxton has qualified as personal representative of her estate, and the atmosphere there is not friendly. I would deny this writ.
PRENTICE, J., concurs.