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Docket Number

77-802.

Attorney(S)

Robert H. King, Gadsden, for petitioners. Loma B. Beaty, Patrick H. Tate, Charles M. Scott, Fort Payne, for respondents.

Judges

PER CURIAM.

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Smart Summary

Case Summary: In re Claud Millard McNutt et al. v. Loma B. Beaty et al.

Factual and Procedural Background

Claud Millard McNutt filed for divorce from his wife, Carol Dean McNutt. The Circuit Court of DeKalb County granted the divorce on July 16, 1975. Approximately three months later the divorce decree was set aside and the parties reconciled. The parties notified the circuit court of the reconciliation in January 1976 and requested dismissal at a hearing set for January 26, 1976. On October 5, 1977—about one year and nine months after the reconciliation—the trial court entered an order dismissing the case and awarding attorneys' fees: $1,800 to Loma B. Beaty (Carol's attorney) and $775 to Charles M. Scott (Claud's attorney). The order was amended October 24, 1977 to award an additional $500 to Patrick H. Tate, appointed guardian ad litem for Carol. The aggregate of $3,075 was charged to Claud McNutt.

The McNutts did not appeal the fee awards. Five months later they filed a Rule 60(b) ARCP motion alleging the court lacked jurisdiction to enter the fee orders. The trial court denied relief; the Court of Civil Appeals affirmed. The Supreme Court of Alabama granted certiorari and reversed.

Legal Issues Presented

Whether a circuit court retains continuing jurisdiction in a divorce action to enter an order awarding attorneys' fees after the parties have reconciled.
Whether a motion under ARCP 60(b) alleging lack of jurisdiction (Rule 60(b)(4)) is timely when filed five months after the trial court's fee orders, given other 60(b) subsections carry a four-month requirement.

Arguments of the Parties

Petitioners' (McNutts') Arguments

The trial court lacked jurisdiction to enter orders awarding attorneys' fees after the parties reconciled; accordingly, the orders were void and relief under ARCP 60(b)(4) was appropriate.
The McNutts relied on the contention that reconciliation abrogated the cause of action, leaving no basis for fee awards.

Respondents' Arguments

The Court of Civil Appeals treated the McNutts' contentions as falling within ARCP 60(b)(1), (2) or (3), which must be filed no later than four months after the order; because the McNutts' motion was filed five months after the fee orders, it was untimely.
Respondent Tate contended his fee should be awarded as part of the costs of the action pursuant to Rule 17(d), ARCP.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184 (1907)	Definition of a void judgment: a judgment is void if the court lacks jurisdiction over the subject matter or of the parties.	The Court invoked Sweeney to state that an order awarding attorneys' fees entered after reconciliation is void if the court lacked jurisdiction at the time of entry.
Bell v. Bell, 214 Ala. 573, 108 So. 375 (1926)	Holds attorney's claim is derivative of client's; reconciliation and a client's dismissal preclude awarding attorney's fees; public policy forbids reopening divorce grounds after reconciliation to allow attorney's fees.	The Court relied on Bell to conclude reconciliation abrogates the cause of action and that after reconciliation the court lost jurisdiction to award attorneys' fees.
Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927)	Reaffirmed Bell: wife's right to dismiss is unqualified; trial court must dismiss and vacate order allowing attorney's fees after reconciliation.	The Court cited Johnson to reinforce that reconciliation requires dismissal and negates entitlement to court-awarded fees.
Murphy v. Murphy, 56 S.D. 355, 228 N.W. 464 (1929)	Holds that upon reconciliation the court has lost jurisdiction to modify or increase attorneys' fees even though action may be technically pending.	The Court used Murphy to support the proposition that reconciliation withdraws issues between parties and deprives the court of jurisdiction to award or modify attorneys' fees.
Kuntz v. Kuntz, 80 N.J. Eq. 429, 83 A. 787 (1912)	Quoted in Bell for the proposition that, after reconciliation, normally the only order allowed is dismissal.	The Court cited Bell's quotation of Kuntz to support the rule that reconciliation permits dismissal and forecloses fee awards.
Annot., 92 A.L.R.2d 1009, 1014 (1963)	Secondary authority discussing related principles concerning post-reconciliation actions and fee awards.	The Court referenced the annotation as supporting authority consistent with the holdings in Bell and related cases.

Court's Reasoning and Analysis

The Court began by identifying the principal issue: whether a circuit court has continuing jurisdiction to award attorneys' fees after reconciliation of the parties in a divorce action. It analyzed procedural relief under ARCP 60(b). The Court of Civil Appeals had treated the McNutts' motion as invoking subsections (1), (2) or (3) of Rule 60(b), which carry a four-month filing deadline; by that reasoning the McNutts' motion (filed five months after the fee orders) was untimely.

The Supreme Court observed an alternative and controlling ground: Rule 60(b)(4) permits relief where a judgment is void, and such a motion need only be filed within a reasonable time. The Court explained that a judgment is void when the rendering court lacks jurisdiction over the subject matter or the parties (citing Sweeney v. Tritsch). The threshold inquiry therefore became whether reconciliation divested the trial court of jurisdiction to award attorneys' fees.

The Court surveyed controlling precedent (Bell v. Bell; Johnson v. Gerald; Murphy v. Murphy) and concluded that reconciliation abrogates the cause of action in a divorce proceeding and that the suit "as a legal proceeding no longer exists." Consistent with those authorities, the Court held that after reconciliation no order awarding attorneys' fees may be entered and, in most cases, the only permissible order is dismissal. Litigation for divorce is not to be prolonged to enable fee awards; attorney fee awards are derivative of the client's right and cannot be asserted once the client has cut off the claim by reconciliation and dismissal.

The Court applied those principles to the facts: the fee awards were entered almost two years after reconciliation; therefore the portions of the trial court's orders awarding attorneys' fees were void for lack of jurisdiction. The Court rejected respondent Tate's contention that his fee should be taxed as costs under Rule 17(d), noting the trial court did not treat it as a cost and that appointment of a guardian ad litem under Rule 17(c) is for an incompetent "not otherwise represented"—Carol was already represented by respondent Beaty.

Because the fee awards were void, the McNutts' Rule 60(b)(4) motion was properly based and should have been granted. The Court reversed the Court of Civil Appeals and remanded for action consistent with this opinion.

Holding and Implications

Holding: The Supreme Court of Alabama held that a trial court does not retain jurisdiction to enter orders awarding attorneys' fees after the parties to a divorce have reconciled; therefore, the portions of the trial court's orders awarding attorneys' fees were void. The Court reversed the Court of Civil Appeals and remanded for proceedings not inconsistent with this opinion.

Implications:

The direct consequence is that the fee awards totaling $3,075 charged to Claud McNutt were void and the McNutts' Rule 60(b)(4) challenge should have been granted.
The opinion affirms existing Alabama precedent that reconciliation abrogates a divorce cause of action and that courts lose jurisdiction to award attorneys' fees thereafter; it does not announce a novel rule of law beyond applying those precedents.

Disposition: REVERSED AND REMANDED.

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In re Claud Millard McNUTT et al. v. Loma B. BEATY et al. Ex parte Claud Millard McNutt and Claud Millard McNutt, as Administrator of the Estate of Carol Dean McNutt, Deceased.

PER CURIAM.

The issue in this case is whether a circuit court has continuing jurisdiction over a divorce case permitting it to enter an order awarding attorneys' fees some two years after reconciliation of the parties. We hold it does not.

Petitioner, Claud Millard McNutt, filed an action for divorce from his wife, Carol Dean McNutt. The divorce was granted by the Circuit Court of DeKalb County on 16 July 1975. Three months later the divorce decree was set aside and the parties were reconciled shortly thereafter. Notice of the reconciliation was given to the circuit court by the parties in January 1976. By an undated letter to the court they requested the case be dismissed at a hearing which was set for 26 January 1976. On 5 October 1977, one year and nine months later, the court entered an order dismissing the case and awarding attorneys' fees of $1,800 to respondent, Loma B. Beaty, Carol McNutt's attorney, and $775 to respondent, Charles M. Scott, Claud McNutt's attorney. The order was amended on 24 October 1977 to award $500 to respondent Patrick H. Tate, an additional attorney appointed by the court as guardian ad litem for Carol McNutt. The aggregate sum of $3,075 was charged to Claud McNutt.

Petitioners, Claud and Carol McNutt (since deceased), did not appeal the orders awarding the attorneys' fees. Five months later they filed a Rule 60 (b), ARCP, motion for relief alleging the court was without jurisdiction to enter the orders. The court denied their motion and the McNutts appealed to the Court of Civil Appeals. That court held the trial court did not abuse its discretion in denying the McNutts' motion and affirmed.

We granted certiorari because of the unprecedented order requiring McNutt to pay his own attorneys' fees; the questionable need of Carol McNutt to be represented by two attorneys; the lengthy amount of time between the setting aside of the divorce decree and the award of attorneys' fees, and the strong public policy of this state against continuing litigation in divorce cases in order to allow for attorneys' fees.

The Court of Civil Appeals believed the contentions raised in the McNutts' motion fell within ARCP 60 (b)(1), (2) or (3) which provides:

"* * * On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; * * *"

Motions under (1), (2) or (3) are required to be made no later than four months after entry of the order or judgment complained of. The Court of Civil Appeals held the McNutts' motion to be filed too late because it was filed five months after the orders awarding attorneys' fees.

There is, however, another ground upon which the motion was based; one which we hold to be valid. ARCP 60 (b)(4) allows a court to relieve a party from a judgment or order if it is void. A motion for relief based on Rule 60 (b)(4), that the judgment is void, need only be filed within a reasonable time.

A judgment is void if the court rendering it lacks jurisdiction over the subject matter or of the parties. Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184 (1907). Thus, the issue is whether the trial court retains jurisdiction to award attorneys' fees after reconciliation of the parties. In Bell v. Bell, 214 Ala. 573, 108 So. 375 (1926), a wife brought suit against her husband for divorce and requested an order for temporary alimony and attorney's fees. Pending the order, the parties reconciled and the wife filed a request for dismissal. At the instance of the wife's attorney, the court entered a decree awarding attorney's fees. This court reversed, holding:

"* * * The attorney has no separate equity, but must derive it from that of his client. The proceeding must be in her name for her benefit. When by her act she cuts off all claim to such allowance the right of the attorney cannot arise. * * *

"We are fully in accord with the view that public policy forbids the reopening of the grounds of divorce after reconciliation for the purpose of allowing attorneys' fees against the husband. * * *

"* * * On the filing of the wife's application to dismiss, it was the duty of the register to enter the order of dismissal and proceed no further with the reference. * * *" 214 Ala. at 576, 108 So. at 378-379.

In Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927), the parties to a divorce reconciled after a divorce decree was rendered. Subsequently, the court allowed the wife's attorney to intervene and awarded him attorney's fees. The parties' petition for mandamus in this court was granted and the opinion of this court reaffirmed the public policy stated in Bell. In Johnson, this court held the wife's right to dismiss is unqualified. Consequently, the trial court was required to dismiss the case and vacate its order allowing attorney's fees. In Murphy v. Murphy, 56 S.D. 355, 228 N.W. 464 (1929), the parties to a divorce reconciled after an order had been entered requiring the husband to pay temporary alimony and fifty dollars in attorneys' fees. Upon receiving notice of the reconciliation the attorneys for the wife applied for and received a modification of the prior order which increased the attorneys' fees by seventy-five dollars. In reversing the modification order the South Dakota Supreme Court held:

"* * * [The attorneys] contend the alimony may be allowed so long as the action is pending and that until final judgment is entered the action is pending. In a sense this is true. It is pending for final judgment of dismissal, but the parties by their acts have withdrawn all issues between them and the court has lost jurisdiction * * *." (emphasis added) 56 S.D. at 359, 228 N.W. at 466

Thus, as stated in Bell, we hold that reconciliation between the parties to a divorce abrogates the cause of action; the suit as a legal proceeding no longer exists. After reconciliation no order or judgment may be entered awarding attorneys' fees and, in most cases, no order of any kind will be allowed other than one dismissing the case. Bell v. Bell, 214 Ala. at 575, 108 So. at 378, quoting Kuntz v. Kuntz, 80 N.J. Eq. 429, 83 A. 787 (1912). See Annot., 92 A.L.R.2d 1009, 1014 (1963). Litigation for divorce is not conducted for the benefit of attorneys. An award of attorneys' fees is derivative and solely for the benefit of the party who is granted the divorce and cannot pay his or her attorney. Where reconciliation takes place, the attorneys can collect their fees from their respective clients as they do in other cases.

In this case the orders awarding the attorneys' fees came almost two years after reconciliation of the parties. So much of the orders as awards those fees is void because the court lost jurisdiction upon reconciliation of the parties.

Respondent, Tate, contends his fee should be awarded as part of the costs of the action pursuant to Rule 17 (d), ARCP. The trial court did not tax Tate's fees as a part of the costs and we will not. Public policy against continuing litigation in order to provide attorneys' fees applies equally to all attorneys involved in the case. Additionally, Rule 17 (c) provides:

"* * * The court shall appoint a guardian ad litem (1) for an infant defendant, or (2) for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the infant or incompetent person. * * *" (emphasis added)

At the time of the appointment of Tate as guardian ad litem, Carol McNutt was already represented by respondent Beaty.

Because the portion of the orders of the trial court awarding attorneys' fees were void for lack of jurisdiction of the trial court to award those fees, the McNutts' motion for relief was properly based on ARCP 60 (b)(4) and should have been granted. Accordingly, we reverse the judgment of the Court of Civil Appeals and remand to that court for decision not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C.J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

McNUTT v. BEATY