Williams v. Williams

23 S.W.3d 721, 2000 Mo. App. LEXIS 809, 2000 WL 688620
CourtMissouri Court of Appeals
DecidedMay 30, 2000
DocketNo. ED 75935
StatusPublished
Cited by1 cases

This text of 23 S.W.3d 721 (Williams v. Williams) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Williams, 23 S.W.3d 721, 2000 Mo. App. LEXIS 809, 2000 WL 688620 (Mo. Ct. App. 2000).

Opinion

GARY M. GAERTNER, Presiding Judge.

Appellant, Douglas Raymond Williams, (“husband”), appeals from the judgment of the Circuit Court of St. Louis County in favor of respondent, Gina Maureen Williams (“wife”), awarding her attorney’s fees and costs on appeal in the amount of $4500.

The parties were married in 1976 and have one child born of the marriage. On October 31, 1996, the marriage was dissolved by a decree. The decree incorporated a settlement agreement that set forth a division of the marital property, stated terms governing the custody of the minor child of the marriage, and provided for continuing maintenance and support obligations on part of husband. Within the year following the decree, both parties filed numerous motions, including motions to modify and for contempt. These motions were heard and denied on June 29, 1997.

On October 21, 1997, husband filed a motion to set aside the decree stating he had suffered from a mental illness before, and at the time the decree was entered. On February 9, 1998, the trial court dismissed husband’s motion with prejudice. Husband appealed.

On October 20, 1998, this court affirmed the judgment of the trial court. Williams v. Williams, 980 S.W.2d 137 (Mo.App. E.D.1998). On October 26, 1998, husband filed a petition in bankruptcy seeking relief under Chapter 7 of the United States Bankruptcy Code. On December 18, 1998, this court’s mandate was issued on the opinion of October 20,1998.1

On January 7, 1999, wife sought and obtained an order from the United States Bankruptcy Court, Eastern District of Missouri, lifting the Bankruptcy Code’s au[723]*723tomatic stay and authorizing wife to pursue a claim against husband for attorney’s fees and costs on appeal. On January 15, 1999, wife filed a motion with the trial court seeking attorney’s fees and costs associated with that appeal. After a hearing on February 11, 1999, the trial court granted wife’s motion, awarding wife $4500. On February 19, 1999, husband filed a motion for new trial or in the alternative, motion to dismiss. On March 2,1999, the trial court overruled husband’s motion. Husband appealed.

Husband raises two points on appeal. In his first point, husband alleges the trial court erred in entering judgment in favor of wife because it lacked jurisdiction, in that wife’s motion for attorney’s fees and costs on appeal was filed with the trial court after the mandate of this court was issued to and received by the trial court. We disagree.

Husband cites numerous cases for the proposition that trial courts are without authority to entertain motions for attorneys’ fees after the issuance of an appellate mandate that affirms a prior judgment of the trial court. See Papin v. Papin, 475 S.W.2d 73 (Mo.1972); Meierer v. Meierer, 876 S.W.2d 36 (Mo.App.W.D.1994). However, husband does not provide any cases that address the situation before us, which is: What effect did husband’s filing of a petition for bankruptcy have on wife’s ability to file her motion for attorneys’ fees after the mandate issued.

Wife directs us to Federal Bankruptcy Law, 11 U.S.C. Section 362, which operates as an automatic stay order preventing claims from being filed and pursued against a debtor once a bankruptcy petition is filed. Specifically, section 362(a)(1) provides a stay shall be imposed on:

The commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding [i] against the debtor that was or could have been commenced before the commencement of the case under this title, or [ii] to recover a claim against the debtor that arose before the commencement of the case under this title[.]

Further, “Section 362 is ‘extremely broad in scope’ and ‘should apply to almost any type of formal or informal action against the debtor or the property of the estate.’ ” Delpit v. Commissioner Internal Revenue Service, 18 F.3d 768, 771 (C.A.9 1994) (citing 2 Collier on Bankruptcy p 362.04 at 362-34 (15th ed.1993)).

On October 20, 1998 this court affirmed the judgment of the trial court. Missouri case law illustrates that a trial court has the authority to entertain motions for attorneys’ fees up until the time this court issues its mandate. See Meierer v. Meierer, 876 S.W.2d 36 (Mo.App. W.D.1994). Husband, in the case at bar, filed his petition for bankruptcy on October 26, 1998, almost two months before this court issued its mandate on December 18, 1998. We find wife’s motion for attorney’s fees was clearly a formal action against husband, the debtor, because it was a commencement of a judicial proceeding against husband that could have been commenced on or before October 26, 1998, i.e., before the commencement of his petition for bankruptcy.

Eleven U.S.C. Section 362 has a counterpart in 11 U.S.C. Section 108, which operates to extend the time period a creditor can file an action if such creditor was previously prevented from filing an action as a result of the automatic stay. Specifically, this section states:

[I]f applicable nonbankruptcy law...fixes a period for commencing or continuing a civil action in a court other than bankruptcy court.. .against the debtor,...and such period had not expired before the date of filing of the petition, then such period does not expire until the later of: (1) the end of such period, including any suspension of such period occurring on or after the [724]*724commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1202, or 1301 of this title, as the case may be, with respect to such claim. 11 U.S.C. Section 108(c)(1), (2).

On October 26, 1998, once husband filed his petition in the bankruptcy court, an automatic stay was in operation under 11 U.S.C. Section 362. On January 7, 1999, when wife sought and obtained an order from the Bankruptcy Court lifting the automatic stay, 11 U.S.C. Section 108 operated as an extension for 30 days for which wife could then file her motion for attorney’s fees and costs on appeal. Wife filed her motion on January 15, 1999, well within the 30-day time frame set by section 108.

Husband argues that wife’s reliance on 11 U.S.C. 108(c) is “unavailing and misplaced.” Husband maintains that section 108 merely extends the period of time for commencing or continuing a civil action against a debtor in bankruptcy, but does not enlarge a trial court’s jurisdiction.

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Bluebook (online)
23 S.W.3d 721, 2000 Mo. App. LEXIS 809, 2000 WL 688620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-williams-moctapp-2000.