Otani v. Otani

*62 OPINION OP THE COURT BY BANKS, J. (Perry, C. J., dissenting.) This is a motion for the allowance of an attorney’s fee for services rendered in this court. The parties to the motion were divorced February 12, 1919, and the custody of their minor child was awarded to the mother, who was the libelant. The decree of divorce also provided that the libelee (the husband) should pay to the libelant (the wife) the sum of $25 per month as permanent alimony. Subsequently the decree was modified and the libelee was required thereafter to pay to the libelant the sum of $40 per month as alimony and for the support of the minor child. On December 30, 1926, the libelee filed in the court of domestic relations a motion asking for a further modification of the decree of divorce. The modification thus sought was that the custody of the minor child be transferred from the' libelant to the libelee and that the provision awarding alimony be stricken from the decree. On February 7, 1927, the judge of the court of domestic relations. entered an order eliminating from the decree the provision'for the payment of alimony and awarding the custody of the child to the libelee. From this order the libelant appealed to this court. On June 24, 1927, this court handed down an opinion affirming the order appealed from. (See Otani v. Otani, 29 Haw. 866.) In the preparation of the appeal from the aforesaid order and its prosecution before this court the libelant was represented by Messrs. Schnack & Tracy, members *63 of the bar of this court. On June 28, four days after the opinion of the court affirming the order appealed from had been rendered and after the services of Messrs. Schnack & Tracy in connection with the preparation and argument of the appeal from said order had been performed, the instant motion was filed. The motion contains a request that this court allow Messrs. Schnack & Tracy a reasonable fee for their services, rendered on behalf of the libelant (appellant) on her appeal from the aforesaid order. Although the motion does not ask that the libelee be required to pay whatever fee, if any, may be allowed we will assume that such was one of its purposes. Our justification for this assumption is that the motion - seems to have been so regarded by counsel on both sides. It is alleged in the motion that it is based on the records and files herein and the affidavit of F. Schnack, a member of the firm of Schnack '& Tracy. The affidavit of Mr. Schnack shows that his firm had performed certain services in behalf of the libelant in connection Avith the appeal and that such services so performed are reasonably worth the sum of $250 and that his firm has received no money whatever for such services. It is also apparent from the record that the libelant was, at the time the motion was filed, without sufficient means to pay her counsel for the services so rendered. The " question for our consideration and decision, therefore, is whether under the facts and circumstances now before us we should order the libelee (the former husband of the libelant) to compensate the latter’s counsel for services performed by them in this court in her behalf in connection with an order modifying the decree of divorce, which services were rendered by them prior to the filing of the instant motion. If the motion had been made before the services Avere rendered the question Avould be distinctly different. Such *64 a motion would have been to require the former husband to advance to the indigent former wife money with which to employ counsel to protect her rights involved in the appeal, which rights otherwise might be jeopardized and' perhaps utterly lost. The motion before us, however, is to require the former husband to compensate counsel, who, before the motion was made, had already appeared in this court in behalf of the indigent former wife and had already done all in their power to protect hér rights in the appeal. Prom what source do ■ we derive our power to deal with the matter under consideration and what are the limitations upon that power? In Gomes v. Gomes, 25 Haw. 793, this court held that the power was an inherent one and was not derived from legislative enactment. In support of its conclusion that the power was not derived from statute the court quoted in its opinion section 2935, R. L. 1915, which is identical with section 2978, R. L. 1925. This section is as follows: “Whenever it shall be made to appear to the judge after the filing of any libel, that the wife is under restraint or in destitute circumstances, the judge may pass such orders to secure her personal liberty and reasonable support, pending the libel, as law and justice may require, and may enforce such orders by summary process. The judge may also compel the husband to advance reasonable amounts for the compensation of witnesses and other reasonable expenses of trial to be incurred by the wife. The judge may revise and amend such orders from time to time.” In commenting on this statute the court said in the Gomes case, at page 795: “It seems too clear to. permit of argument that the above statute deals only with the authority of circuit judges at chambers to grant temporary alimony and expenses of trial and is neither a grant of *65 authority to, nor a limitation upon the authority of, this court to deal with that subject.” As great as is our hesitation to overrule a former decision of this court we nevertheless are brought to the conclusion, after mature deliberation, that on this point Gomes v. Gomes does not state the law correctly. The statute manifestly reflects the legislative will on the subject of a husband’s obligation to advance to his wife money with which to defray the expenses of the trial, and it also reflects the legislative will as to the circumstances under which he may be compelled to discharge this obligation. It is true this court is not specifically mentioned in the statute but it is equally true that the legislative intent is clearly inferable from the language employed and that intent was that the courts of the Territory having jurisdiction of the matter should only have the power to require the husband to advance counsel fees to his wife under the circumstances enumerated in the statute. The term “the judge,” as used in the statute, is evidently synonymous with “the court,” and refers to Avhatever tribunal, Avhether this court or the circuit court, before Avhich the libel is pending. This being so we feel equally bound with the circuit judges to yield obedience to this manifestation of the legislative will and to look to the statute alone in determining the course Ave should take in the matter noAV before us. Gomes v. Gomes, in so far and only in so far as it decides that the statute in question is not applicable to this court, is therefore overruled. This brings us to a consideration of our power under the statute. It is contended by counsel for George Otani, the divorced husband, that under the statute the instant motion should be denied for tAvo reasons, (1) because the statute does not authorize the alloAvance of counsel fees to a divorced Avife in a proceeding to modify the decree of divorce, which proceeding wTas not brought *66 until long after the divorce had been granted; (2) that it does not authorize the allowance of such fees when it appears that the services had already been rendered and the proceeding ended before a request for such allowance was made. It is claimed by counsel for Saki Otani, the divorced wife, that both these contentions are decided adversely to George Otani by this court in Hart v. Hart, 23 Haw. 639. We agree that the first contention is opposed by the Hart case and, notwithstanding the attack on its soundness, we think, to the extent to which it may be considered authority, it is sufficiently supported by reason and precedent to justify its approval. We think, however, for reasons which we shall presently give, that it is not authority against the second contention made in behalf of George Otani. With these views of the Hdrt case in mind let us consider it. The Harts were divorced in 1916 and the husband by decretal order was required to pay alimony and counsel fées to the wife. Shortly after the decree the former wife committed an act of fornication whereupon her former husband filed a motion to have the decree modified so as. to relieve, him of the alimony and counsel fees. The circuit judge entered an order modifying the decree as' to the payment of alimony but refused to modify it as to counsel fees. The former wife excepted to the order and noted an appeal to this court. Some months béfore anything was done by her towards perfecting her appeal she filed a motion in the circuit court which had granted the divorce and had subsequently fitodified the decree asking that her former husband be required to advance to her sufficient money to enable her to employ counsel to represent her in the contemplated appeal. The circuit judge denied the motion on the ground that he had no power under the law to grant it. An exception was taken to this ruling *67 and the matter was duly presented for review. This court reversed the lower court and held that the circuit judge, in an appeal from an order modifying a decree of divorce to the extent of relieving the former husband of his obligation to pay alimony, had the power to require the former husband to make the necessary advancement of counsel fees to his former wife to enable her to perfect and prosecute the appeal. In respect to the orders modifying the decrees of divorce the instant case and the Hart case are sufficiently similar to make the principle announced in the Hart case entirely applicable to the instant case. Each of the decrees affected the former wife’s right to alimony. Each of them was appealable and from each of them an appeal was taken. In the Hart case it was decided that under the statute the circuit judge had the power to require Hart, on motion made by his former wife before the appeal was taken and before any services had been rendered by her counsel in connection with her appeal, to advance to her a reasonable amount with Avliich to employ counsel to perfect and prosecute her appeal. In giving its reasons for this conclusion the court said, at pages 644, 645: “We are of the opinion that the provisions of section 2935 R. L. are broad enough to include the alloAvance of expenses incurred or to be incurred by the wife in resisting an application for an order revoking an allowance of alimony contained in a decree granting her a divorce. It seems obvious to us that the wife might be as much in need of expense money in her efforts to protect the rights granted her by a final decree. of divorce as she would be in need therefor in the proceedings had prior to said decree.” This is clearly an adjudication that in a proceeding to modify a decree of divorce, when the modification sought affects the question of alimony, the court has the power, under proper circumstances, to require *68 the divorced husband to advance to his divorced wife funds with which she may procure counsel to protect her rights. As we have already intimated we are in complete accord with' this conclusion. It is contended, however, by counsel for Saki Otani, the movant herein, that the court not only decided that the divorced husband should advance money with which the divorced wife might compensate counsel for services to he rendered bnt that it also decided that he should pay for services already rendered by her counsel. We think the latter question was not within the facts that were before the court in the Hart case and therefore whatever was said on that subject was dictum and being dictum wb cannot regard it as an authoritative ruling. Speaking on the subject of dicta, the Supreme Court of the United States, in Carroll v. Lessee of Carroll et al., 57 U. S. 275, 286, 287, said: “This court * * * has never held itself bound by any part of an opinion, in any case, which was not needful to the ascertainment of the right or title in question between the parties. In Cohens v. The State of Virginia, 6 Wheat., 399, this court was much pressed with some portion of its opinion in the case of Marbury v. Madison. And Mr. Chief Justice Marshall said, ‘It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a ¡subsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent; other principles which may, serve to illustrate it are considered in their relation to the case decided, bnt their possible bearing on all other cases is seldom completely investigated.’ The cases of Ex parte Christy, 3 How., 292, and Jenness *69 et al. v. Peck, 7 Id., 612, are an illustration of tlie rule that any opinion given here or elsewhere cannot be relied on as a binding authority, unless the case called for its expression.” That the decision that Hart should have been required by the circuit judge to compensate Mrs. Hart’s counsel for services already rendered in connection with her appeal (if it was the intention of the court to so decide) was not within the facts of the case and was not necessary to its adjudication and was dictum is manifest from the record in that case. This record discloses that the order modifying the decree of divorce was entered on July 10, 1916. An exception was reserved and notice of appeal given. On July 19 following Mrs. Hart filed a motion asking the circuit judge for an order requiring the libelee (her former husband) to contribute money to her for attorney’s fees and alimony pendente lite “incurred and to be incurred” on her appeal from.the order of the circuit judge modifying the decree of divorce. Two days prior to filing this motion she made an affidavit to the effect that she was desirous, of appealing from the order modifying the decree of divorce and that she was “wholly without funds or money to pay the expenses and costs of said appeal, and wholly without funds or money to pay her attorney for his services to he rendered and performed upon said appeal(The italics are ours.) This affidavit alone of the entire record discloses the facts upon which the motion was predicated. There appears to have been no other evidence before either the circuit judge or this court. This evidence does not show that Mrs. Hart had already incurred liability for attorney’s fees in connection with her appeal and there is nothing elsewhere in the record to indicate that she had incurred such liability. It appears from the affidavit that she was without funds to pay her attorney for his services *70 “to be rendered and performed” upon her said appeal. In fact, the motion was made before any steps were taken by her counsel to perfect the appeal. It was not until December 11, several months after the motion for counsel fees was filed, that she filed in this court a petition for a writ of error. The writ was issued on the same day that the petition was filed. In the brief of counsel for Mrs. Hart, filed in support of the assignments of error, is the following: “The third point which is ’set forth in libelant’s assignments of error twelve, thirteen and fourteen is the refusal of the lower court to allow alimony, etc. pending the determination of this proceeding. The lower court held that the case was brought in this court in good faith, and under such circumstances our contention is that it is error for the lower court to refuse a reasonable sum as alimony, costs and counsel fees to prosecute the appeal” (Italics ours.) This excerpt from counsel’s brief strengthens the conclusion that the question we are now considering was not before, the court in the Hart case and its decision was therefore not necessary to an adjudication of the right the appellant was seeking to establish. . For the foregoing reasons we deem the question one of first impression in this jurisdiction and feel at liberty to decide it on principle and in accordance with what we conceive to be sound judicial precedent. The théory upon which a man, whether he is the husband of the woman, or her divorced husband, is required to compensate her counsel in a divorce proceeding or some proceeding related thereto, is that if she is in such necessitous circumstances that she cannot employ counsel she will be at so great a disadvantage in the controversy that her rights may be seriously imperiled or completely lost. In order to prevent this calamity the law, in a fine spirit of justice, requires the man to coiné to her assistance. If, however, she by *71 some means of her own devising, no matter what— whether by money given her hy sympathetic friends or by savings from her own meager means or by the use of her credit — actually procures and has the benefit of counsel throughout the entire litigation, she provides for herself the very protection which the man would otherwise be obliged to provide for her and the necessity of requiring the man to step into the breach and make this provision for her no longer exists and the theory of the law upon which his obligation rests is no longer applicable. His obligation is in no sense a contractual one from which either the woman or her counsel derives any rights. It is a duty imposed upon him for the woman’s benefit. If through her own efforts, without seeking to require the man to aid her, she accomplishes the purpose for which the duty is imposed the duty itself ceases. In Gomes v. Gomes, supra (which we overrule on another point), the court, in stating its reasons for requiring the husband to advance counsel fees to his wife, said at page 795: “Counsel is as necessary on appeal as in the earlier stages of the litigation and if the wife can have no allowance to enable her to employ counsel to represent her in resisting the husband’s appeal she may be deprived of the right to appear on an equality with her husband.” If the wife by using her own funds or her own credit places herself on this plane of equality, which equality is maintained throughout the litigation, there is no authority for requiring the husband to reimburse her for what she has thus expended or to pay an indebtedness which she has thus incurred. In Loveren v. Loveren, 100 Cal. 493, the court had under consideration the following statute: “While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony, any money necessary to enable the wife * * * to prosecute *72 or defend the action.” In construing this statute the court, at pages 494, 495, said: “If the expenses of the action have been incurred or paid by her Avith means derived irom her separate estate or upon her credit, then there can be no necessity for an alloAvance by the court to i enable her to do that Avhich she has already done, and Avithout such necessity the court has no authority under the statute to make such an order. And no better evidence can be adduced of her ability in this respect than the fact that she has been able, as the record sHoavs, to incur these expenses, and to pay them Avith money borroAved by her entirely upon the strength of her oavu credit. Expenses so incurred and paid may be, Avhere it is proper to do so, taxable as costs in the case, but they cannot be made the basis of an order Avithin the meaning of this statute granting an alloAvance therefor, and compelling the husband to pay them. Such an alloAvance can only be granted as to expenses necessary to be incurred in the future prosecution or defense of the action, and cannot be made for the payment of past expenses except where such payment is necessary to be made in order to enable the wife to further prosecute or defend her case.” In Leak v. Leak, 156 Fed. 474, the circuit court of appeals of the ninth circuit had under consideration the following. statute: “After the commencement of an action, and before judgment therein, the court or judge thereof miay, in its discretion, provide by order as follows : First. That the husband pay or cause to be paid, to the clerk of the court,' such an amount of money as may be niecessai’y to enable the Avife to prosecute or defend the action, as the case may be. Second. For the care and custody and maintenance of the minor children of the marriage during the pendency of the action.” In construing the statute the court said (p. 477) : “It has been uniformly held in states having statutes similar to *73 section 471, pt. 4, of the Code of Alaska, before quoted, that the court in an action like this is only authorized to make an allowance to the wife for future expenses. Thus in Beadleston v. Beadleston, 103 N. Y. 404, 8 N. E. 736, it is said: ‘The purpose of the statute is to furnish the wife means to carry on her action or to defend the same during the pendency thereof. The allowance looks to the future. There can be no necessity for an allowance to make a defense which has already been made or solely to pay expenses already incurred. * * * There is ample poAver in the court to make alloAArances from time to time to enable the wife to carry on her defense, and when she needs money for that purpose she must apply for it. But, if she has succeeded in making her defense from her oaaui means, or upon her OAvn credit, she cannot, before judgment, while the action is pending, have an order compelling her husband to pay such expenses; and there is no statutory authority in the court to make such an order, and thus to compel him to pay her debts.’ ” Corpus Juris, Vol. 19, Sec. 549, p. 233, states the rule thus: “As a general rule no allowance can be had for counsel fees which have been already earned. Likewise, although there is some authority to the contrary, an allowance for the payment of past expenses cannot ordinarily be made, except Avhere such payment is necessary to enable the wife further to prosecute or defend the case.” Our own statute indicates with perhaps greater precision than the California statute or the Alaska statute the circumstances under Avhich this burden may be placed upon the husband. The reasoning of the California court and that of the ninth circuit court of appeals is just as applicable to our statute as it AAras to the statutes under consideration by those courts. As has been foreshadoAved, our conclusion is that the instant motion should be denied. There are decisions of *74 courts other than those which we have cited which support this conclusion. We do not deem it necessary to cite them for the reason that they can be found by referring to1 the quotation from Corpus Juris, supra. It is suggested that the question of at what stage of the proceeding in a divorce libel or in a proceeding collateral thereto counsel fees may be awarded the wife, or the divorced wife, is not one of substantive law but one of practice merely, and, it having been decided in the Hart case that such award should under the statute be made not only for services to be rendered but for services already rendered, the decision should not be disturbed. Assuming that the question is one of practice merely — if1 the allowance of counsel fees for services already rendered the divorced wife had been within the facts of the Hart case we would be inclined to abide by the decision. In Wilder v. Colburn, 21 Haw. 701, the court said at pages 702, 703: “The defendant demurred to the complaint upon the ground, among others, of a misjoinder of causes of action in that an action based upon a judgment as sought to be set forth in the first count was joined with counts for claims for unpaid taxes as set forth in the other counts. In the case of Harrison v. Magoon, 13 Haw. 339, 358, it was held that an action on a judgment is, within the meaning of our statute (Civ. Laws, Sec. 1259; R. L. Sec. 1743), an action ex contractu on the promise, or contract implied by law to pay the1 amount of the judgment, and that a count upon a judgment may be joined with another upon contract express or implied. The plaintiff-in-error contends that a judgment is in no proper sense a contract or agreement between the parties, and claims that the case cited Avas 'wrongly decided. We are not disposed to. consider the contention on its merits. The point presented is one of mere practice under the statute which *75 should be regarded as settled, and we adhere to the ruling made in that case. A question of this kind having once been definitely decided, should and generally will be regarded as settled. 11 Cyc. 748; Mosher v. Huwaldt, 86 Neb. 686.” It is apparent from reading the opinion in Harrison v. Magoon that the question of practice therein decided, and approved in Wilder v. Colburn, was before the court and its decision was an authoritative adjudication. As we have already pointed out, hoAvever, the question now before ais Avas not involved in the Hart case and therefore it Avas not authoritatively adjudicated. Under these circumstances Ave feel it our duty to establish a precedent that is in conformity Avith our construction of the statute and also in accord with the great Aveight of judicial precedent. We do not mean to decide, and we do not decide, that under no circumstances is a Avife, or even a divorced Avife, entitled to a judicial order requiring her husband, or her divorced husband, to compensate her counsel for services already performed in her behalf in a divorce proceeding or in some matter incidental to and groAving out of such proceeding. What the facts before us require us to decide and Avhat Ave do decide is that in an appeal by a divorced Avife from an order modifying the decree of divorce to the extent of relieving her divorced husband of an obligation imposed upon him, by the decree, to pay alimony to her, and taking the minor child of the parties from her custody and giving it into the .custody of the divorced husband, the divorced husband should not be required to compensate the attorney of the divorced wife for services rendered her, in connection with the appeal, when no request for such compensation is made until after the services of her attorney have been rendered and his further services are no longer required to protect her rights. *76 F. Bóhnack (Bclmack & Tracy on the briefs) for the motion. E. J. Botts (also on the briefs) contra. Tlie motion is denied.