In re the Marriage of Comley

32 P.3d 1128, 272 Kan. 202, 2001 Kan. LEXIS 607
CourtSupreme Court of Kansas
DecidedOctober 19, 2001
DocketNo. 85,191
StatusPublished
Cited by10 cases

This text of 32 P.3d 1128 (In re the Marriage of Comley) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Comley, 32 P.3d 1128, 272 Kan. 202, 2001 Kan. LEXIS 607 (kan 2001).

Opinion

[203]*203The opinion of the court was delivered by

Abbott, J.:

Appellant Triplett, Woolf & Garretson, LLC (TW&G) served as appellee Janee Marie Comley’s attorneys of record during her divorce action against respondent Bill Ray Phillips. Here, TW&G appeals the order of the district court filed April 7, 2000. In that order, the district court held that TW&G’s attorney’s Men did not attach to monies paid into the court by a nonparty pursuant to a spousal maintenance order. TW&G filed a timely appeal pursuant to K.S.A. 60-2102(a)(4). The matter is before this court pursuant to a K.S.A. 20-3018(c) transfer.

On October 5, 1998, Comley entered into a representation agreement with TW&G, with James A. Walker as the primaiy attorney responsible for the representation. Walker’s rate of compensation was set at $200 per hour, plus expenses. The agreement specifically stated:

“I understand that due to die pendency of this action and your loss of your job you will be looking for an Order of the Court or a liquidation of marital assets in order to satisfy the attorney’s fees and expenses in this matter. You also understand diat in a matter such as this where your cash flow does not permit you to remain current on our billing, it may be necessary for us to file an attorney’s lien or some other process in order to protect our interests with respect to being paid for our services.”

Comley does not argue that the agreement was improper or that the amount of fees charged by TW&G was excessive.

After considerable litigation and a prolonged trial, the district court awarded Comley a cash property settlement of $550,429 and 6 years of spousal maintenance at $5,000 per month, beginning November 1, 1999. The journal entry of judgment and decree of divorce also granted TW&G judgment against Phillips in the amount of $84,627 for unpaid attorney fees and expenses.

At the commencement of the divorce action, Phillips owned 73.7% of Mid-America Auto Auction (MAA). The court awarded 50% of that business interest to Comley. Phillips had entered into a severance agreement with MAA to compensate him for past services rendered. Following the divorce trial, the court issued an income withholding order requiring MAA to pay the $5,000 per [204]*204month it owed to Phillips to the clerk of the district court for the monthly spousal maintenance payment.

On December 10, 1999, TW&G withdrew as counsel for Comley. John E. Foulston of Foulston Conlee Schmidt & Emerson, LLP, entered his appearance as attorney of record for Comley.

On November 15, 1999, TW&G filed an attorney’s fien and served it upon MAA seeking to attach a portion of the $5,000 payment to the clerk of the district court. Without disputing the amount of TW&G’s fees, Comley contested the application of the lien to the spousal support payments.

On January 7, 2000, a hearing was conducted before the Honorable Rebecca L. Pilshaw. During oral argument, Comley’s new counsel reviewed the history of monies directed to TW&G, noting that during the pendency of the divorce, funds from the sale of real property were put into escrow and from that account more than $125,000 in attorney fees was paid to TW&G. In addition to that amount, TW&G was to receive another $84,627 for attorney fees and expenses. Although Comley was awarded judgment for $550,429 from property division, no payment on that judgment had been made by Phillips. Comley’s attorney stated that except for the spousal maintenance money, Comley was “without any other source of funds on which to five.” Comley’s attorney argued that TW&G should not be able to enforce its fien (1) because public policy dictated that support or maintenance in any form should not be subject to a hen and (2) because the attorney’s hen statute did not provide for a charging hen on monies coming to the court from a third party rather than from the adverse party. Further, Comley’s attorney argued that a statutory Hen was an extraordinary remedy given by the law and, as such, must be strictly construed.

In contrast, TW&G argued that spousal maintenance should not enjoy hallowed status. In addition, TW&G contended that during the trial Comley told the court that one of the reasons she needed $5,000 per month in spousal support was due to her outstanding bills, including TW&G’s bill for attorney fees. Further, TW&G characterized K.S.A. 7-109 as not distinguishing between sources of the monies coming to the clerk of the court. Therefore, TW&G [205]*205argued that “this alimony obviously is a judgment . . . and we are claiming a lien on those amounts.”

The district court held that TW&G’s Hen did not attach to monies paid by MAA directly to the clerk of the district court pursuant to the income withholding order “since these funds do not constitute ‘money due to the client and in the hands of the adverse party’ as required by K.S.A. 7-108.” As an additional ground for its decision, the court held that TW&G’s hen did not attach “to any funds which are due to [Comley], from any source, which are in payment of [Phillip’s] obligation to pay spousal maintenance since to allow a Hen to attach to such monies would violate the pubhc poHcy of the State of Kansas.”

On appeal, TW&G challenges both bases for the district court’s decision. Comley contests the jurisdiction of this court under K.S.A. 60-2102(a)(4) because of pending posttrial motions filed by PhilHps. Comley also seeks affirmance of the holding of the district court as a correct interpretation of public poHcy and K.S.A. 7-108.

The reasons cited by the district court for denying TW&G’s Hen were that the monies sought to be attached were not “in the hands of the adverse party,” as required by K.S.A. 7-108 and that attachment of spousal support in this circumstance would violate pubhc poHcy. TW&G filed its attorney’s Hen under the authority of K.S.A. 7-108 and 7-109. Therefore, the district court’s interpretation of these statutes is at issue.

“Interpretation of a statute is a question of law in which appellate review is unHmited.” Kansas Dept. of SRS v. Paillet, 270 Kan. 646, Syl. ¶ 3, 16 P.3d 962 (2001). “Legislative intent is to be determined from a general consideration of an entire act. To the extent possible, the court should attempt to reconcile different provisions so as to make them consistent, harmonious, and sensible. It is presumed that the legislature intended that its enactments are to be given a reasonable construction, so as to avoid unreasonable results.” Carlson v.

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Cite This Page — Counsel Stack

Bluebook (online)
32 P.3d 1128, 272 Kan. 202, 2001 Kan. LEXIS 607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-comley-kan-2001.