Jasper v. Smith

¶1dissenting.

¶2This is a case in which a lawyer seeks to deny his client the very necessities he told the judge his client must not be denied. In ruling his lien invalid the trial judge told the *406wife’s former attorney, it was “wretched that you, months ago were arguing for the needs and necessities of your client and now you’re trying to take every bit of it away from her to the extent of some $22,307 worth of alimony at the rate of $450 a month. That’s about $6,000 a year she would be without any sustenance whatsoever for almost four years.” Most courts prohibit attorney’s liens on support and so should we.

¶3The Washington Supreme Court summarized the preeminent rule in this area:

A majority of courts of other jurisdictions have declared attorney’s liens filed against funds representing either child support or alimony to be invalid. Generally speaking, these decisions have been based upon considerations of public policy.

¶4Fuqua v. Fuqua, 88 Wash.2d 100, 558 P.2d 801, 804 (1977) (citations omitted). The same principle is found in 7 Am.Jur.2d Attorneys at Law § 339: “It is held that a charging lien does not attach to a decree awarding alimony or to an order for support and maintenance.” * Instead, the majority here embraces the minority rule. See McDonald v. Johnson, 229 Minn. 119, 38 N.W.2d 196 (1949).

¶5The unique purpose of alimony, awarded so an ex-spouse can continue to survive or to obtain skills necessary to survive, makes its diversion through an attorney’s lien inimical to public policy.

[T]he law does not permit an attorney’s lien to attach to the alimony paid to the wife under a decree. It is intended for the support of the party to whom it is awarded, its amount is fixed with reference to her necessities and the courts will not countenance its appropriation to any other purpose.

¶6Indell v. Tabor, 185 N.Y.S. 873, 874 (N.Y.Sup.Ct.1920) (citation omitted). The following cases have likewise disallowed such liens on alimony payments: Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927)(attorney lien statute does not apply to divorce cases); Leone v. Leone, 619 So.2d 323 (Fla.Dist.Ct.App.1993)(attorney’s charging lien should not be enforced against award of alimony if to do so would deprive former spouse of daily sustenance or minimal necessities of life); Thoresen v. Thoresen, 293 Ill.App. 168, 12 N.E.2d 28 (1937)(alimony not subject to attorney lien); Hubbard v. Ellithorpe, 135 Iowa 259, 112 N.W. 796 (1907)(attorney lien on temporary alimony not allowed); Bucknam v. Bucknam, 347 Mo. 1039, 151 S.W.2d 1097 (1941)(attorney lien is an unauthorized charge against alimony but here the suit was for collection of unpaid alimony and parties contracted to fee agreement); Hilleary v. Hilleary, 189 Mo.App. 704, 175 S.W. 282 (1915)(there can be no attorney’s lien on alimony awarded for maintenance and support and is distinguishable from an ordinary suit for damages); Owen v. Forchelli, 42 Misc.2d 1064, 249 N.Y.S.2d 913 (1964)(public policy dictates that attorney’s charging lien does not apply to alimony).

¶7A majority of appellate courts have ensured that a trial judge’s carefully crafted plan for maintaining a former spouse cannot be subverted through an attorney’s lien. This rule accords with South Dakota’s public policy reflected in a panoply of laws designed to guarantee spouses will not go unsupported. See SDCL 25-4-39 (spouse may maintain action for support although divorce denied); SDCL 25-4-40 (action for separate maintenance may be maintained without request for divorce); SDCL 25-4-41 (allowance for spousal support maintainable when divorce granted); SDCL 25-7-5 (duty to support spouse); SDCL 25-7-4 (failure to support spouse is chargeable as a felony); SDCL 21-18-52 (maximum garnishment allowed for support). Surely this broad legislative policy ensuring continued spousal support precludes an attempt by an attorney to impose a charging lien upon it. Indeed, we recently recognized the same protective policy in bankruptcy law, which exempts from discharge spousal support obligations. Hogie v. Hogie, 527 N.W.2d 915 (S.D.1995).

¶8*407South Dakota law specifically provides for payment of attorney fees by the other spouse in divorce actions under certain circumstances. SDCL 15-17-38 (formerly SDCL 15-17-7). This is clearly part of South Dakota’s policy preserving spousal financial well-being. “The granting of attorney fees is based upon the same policy of providing support for the spouse who needs it at the expense of the spouse who can afford to provide it as is temporary alimony.” Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 16.2 (2d ed. 1988).

¶9If attorneys can seize their clients’ support payments to pay their fees, as this Court now holds, then its position is sadly ironic: An attorney hired to obtain support for a client, gains a support award only to keep it for fees. One must then ask, did the client’s case exist only to pay the attorney? A majority of courts have anticipated the absurdity of such a result and have rightly forestalled it. Support is based on needs and must be safeguarded.

¶10The law does not preclude an attorney’s lien on property or cash awarded in lieu of property in a divorce action, but support payments must occupy a protected status, because without them an ex-spouse may not survive.

¶11MILLER, C.J., joins this dissent and I am authorized to so state.