Harmon v. Harmon

1983 OK 89, 770 P.2d 1, 1983 Okla. LEXIS 225, 1983 WL 3
CourtSupreme Court of Oklahoma
DecidedSeptember 20, 1983
Docket55660, 56279
StatusPublished
Cited by20 cases

This text of 1983 OK 89 (Harmon v. Harmon) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harmon v. Harmon, 1983 OK 89, 770 P.2d 1, 1983 Okla. LEXIS 225, 1983 WL 3 (Okla. 1983).

Opinions

LAVENDER, Justice:

Husband/appellant appeals from a judgment of the trial court entered in a divorce proceeding and thereafter filed a separate appeal from an award of attorney fees to wife/appellee entered subsequent to the entry of the original decree. The two appeals were consolidated. The cause was assigned to the Court of Appeals, Division 2, for the rendering of an opinion. Wife filed a petition for certiorari, and certiorari was previously granted by this Court. We now consider the various specifications of error postulated by husband.

I.

JURISDICTION OF THE TRIAL COURT TO AWARD ATTORNEY FEES TO WIFE FOR PRE-APPEAL LEGAL SERVICES.

Husband/appellant alleges that the trial court was without jurisdiction to award attorney fees to the wife after the initial formal divorce decree was entered in the cause, where that journal entry of judgment was silent as to attorney fees and failed to reserve the issue of attorney fees for future determination.

The case was tried on June 18, 1980. During the course of the trial, wife’s attorney stated in open court: “Judge, I have been reminding myself all day, I’d like the record to reflect at this time, as provided by statute, I want to reserve the question of attorney fees, litigation expense, suit money and things like that....” The record does not reflect any formal ruling on the “reservation” by the trial court, or any objection thereto by opposing counsel.

The trial court in his “Memorandum” of decision filed June 27, 1980, made no mention of any matters to be reserved or to be determined at a later date.

The formal decree of divorce, prepared by wife’s attorney and filed on July 18, 1980, made no mention of attorney fees or of any unresolved issues to be determined in the case.

Husband lodged an appeal to this Court from the judgment of June 27, 1980.

On wife’s motion, the trial court conducted a hearing on November 21, 1980, with reference to awarding attorney fees, litigation fees and other costs, and on December 12,1980, the trial court awarded to wife an attorney fee to be paid by husband in the sum of $12,000, with $1,000 to be credited against the award for payment previously made under order of the court.

Husband filed a timely appeal from the “second award,” and this appeal was consolidated with the first appeal taken by husband.

Husband urges that there can be but one judgment in a cause; that the journal entry of July 18,1980, appears on its face to be a complete judgment determining all issues; that the “reservation” by wife at trial of the attorney fee issue was ineffectual because the trial court made no ruling thereon; and since the original journal entry made no reservation of any issues for later determination, the trial court had no jurisdiction to thereafter award attorney fees to the wife for services rendered up to the time of the lodging of the first appeal. We disagree.

In Frankovich v. Frankovich,1 (587) we held on appeal that the trial court did not err in failing to grant any temporary alimony or any temporary attorney fee for defendant’s attorney where there was nothing in the record to indicate that the matter of temporary allowances of any kind was ever presented to the trial court, and nothing in the record to indicate that defendant made known to the trial court the action which defendant desired the trial court to make and his grounds therefor. The case before us is clearly distinguishable. The pre-trial order clearly disclosed that wife sought attorney fees. And while the trial court made no formal ruling upon wife’s purported “reservation” of the issue of attorney fees at the trial, it at least served as notice that her [3]*3attorney fee was still a viable issue in the case and had not been waived.

We next turn to the question of whether the journal entry of July 18,1980, is preclu-sive of the trial court’s later consideration and determination of the attorney fee issue. This in turn requires consideration of the nature of attorney fees in their relation to a decree of divorce rendered before their award.

Title 12 O.S.1981 § 1276 provides in pertinent part:

“ * * * on granting a divorce in favor of the wife or the husband, or both, the court may require the husband or wife to pay such reasonable expenses of the other in the prosecution or defense of the action as may be just and proper considering the respective parties and the means and property of each; .... ”
In the case of Jones v. Jones,2 we said:
“The question before us is whether, in a matrimonial action, the trial court has the authority to entertain wife’s post-decree application for alimony and counsel fees after the husband’s appeal has been brought here from the divorce decree. We hold that in the post-decree state of a matrimonial case in which no alimony was allowed the trial court is nonetheless vested with authority, subject always to our power of reexamination, to consider an application for provisional relief or interim adjustment of adjudicated property or custodial rights, all to remain in effect while the appeal is pending.”

And we further said:

“Pre-1969 case law, which uniformly held that the trial court’s jurisdiction ceased or stood suspended when an appeal had been brought, constitutes obsolete lore. Our post-1969 appellate procedure affords a convenient framework within which both trial and appellate courts share in the exercise of responsibility in resolving issues that are ‘ancillary’ to the pending appeal. In matrimonial litigation, among acts a trial judge is fully empowered to perform in a post-appeal stage are those pertaining to ‘temporary adjustment of adjudicated rights pending the final disposition of appeal.”

The “ancillary” and “accessory”' status of such matters as payment of support, alimony and counsel fees during an inter-spousal appellate contest in their relation to the remainder of a divorce decree judgment was further clarified in Wilks v. Wilks 3 wherein we held them to be an “accessory” to the other provisions of a divorce decree judgment with reference to superse-deas thereof. In Wilks (763) we said: “Both the trial and appellate courts may make provisions for payment of support, alimony and counsel fees during an inter-spousal appellate contest.”

In light of the foregoing, we hold that a trial court has jurisdiction to direct one spouse to pay the other spouse’s attorney fees after judgment has been entered in the lower 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 of judgment and regardless of whether the issue was therein reserved for later determination, provided only that the attorney fee issue is then a viable issue in the case and not theretofore resolved by order of the trial court. In so holding, we distinguish between matrimonial actions and other civil actions, for the reasons more fully explained in Jones v. Jones, supra, and Wilks v. Wilks, supra, particularly in the light of the 1969 amendment to the statute pertaining to an appeal in divorce litigation (12 O.S.1981 § 1282) as construed by this Court in Wilks. Thus, the case before us is distinguishable from Wabaunsee v. Armstrong4

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Harmon v. Harmon
1983 OK 89 (Supreme Court of Oklahoma, 1983)

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Bluebook (online)
1983 OK 89, 770 P.2d 1, 1983 Okla. LEXIS 225, 1983 WL 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harmon-v-harmon-okla-1983.