Otani v. Otani , 30 Haw. 61 ( 1927 )

Eight years ago the wife in this case was granted a divorce from the husband on the ground of extreme cruelty. By the same decree the husband was required to pay her $25 per month as permanent alimony and the custody of a minor child was awarded to her. Later, upon the motion of the wife for an increase in the amount of her permanent alimony, the decree was modified so that the husband was required "to pay to libellant the sum of $40 per month as alimony and for the support of libellant and the minor child of said marriage". The husband recently moved for a further modification of the decree so as to transfer the custody of the child from its mother to its father and so as to put an end to the allowance of alimony to the wife, on the ground that the mother had at various times committed adultery and was no longer a fit and proper person to have the custody of the child. The trial judge found the essential allegations of the motion to be true, granted it, ordered the payments of alimony to cease and placed the child in the custody of the father. From that modification of the decree the wife appealed to this court. Upon the appeal the order of the trial judge was sustained. Thereafter, in this court, counsel for the wife moved for the allowance of a counsel fee to the wife, to be paid by the husband, for services rendered upon the appeal in this court. The question before us is whether the husband can be required to pay the fee.

The case was presented, in the briefs and on oral argument, evidently upon the belief or assumption by counsel that the original decree, as first modified, did not secure any alimony to the wife but secured merely a payment to her of a stated monthly sum for the support of the child. Upon that assumption, the latest contest was one purely with relation to the custody of the child and not in any wise with relation to an allowance of alimony secured to the wife. Whether under those circumstances this court would have the authority to require or would be justified in requiring the husband to pay to the wife the amount of her attorney's fee need not be considered.

Under the facts as they actually occurred, the latest contest, while it did involve the question of custody of the child, did also involve the prior grant of alimony to the wife. It was an effort by the husband, resisted by the wife, to terminate payments of alimony to her. It is settled in this jurisdiction that an allowance for counsel fees may be granted to the wife at the expense of the husband under these circumstances, that is to say, even after decree when the effort is to deprive the wife of the right to alimony secured to her by the decree. Hart v.Hart, 23 Haw. 639. It is said, however, that no allowance of counsel fees can be had in this particular case because the application for them was not made until after the rendition of the services by the attorney. Upon this point, also, this court has spoken. In the same case of Hart v. Hart, on pages 644, 645, this court said: "We are of the opinion that the provisions of section 2935 R.L." (section 2978, R.L. 1925) "are broad enough to include an allowance 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." Whether this view of the law upon this point should prevail, were the question now arising for the first time in this jurisdiction, I need not consider. But the question at least is a debatable one. The language of the statute is that "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 words "to be incurred" are susceptible of the construction that they refer to expenses which may be incurred by wives instituting divorce cases after the date of the enactment, rather than expenses which may be incurred after the making of the order to the husband to pay. The question is not one the decision of which would be of widespread application, nor is it of very great importance. An award of counsel fees can be applied for and obtained as easily in limine as at the end of the case. No principle of right or wrong or even of policy is involved. It is practically a question of procedure only. Under these circumstances, I see no sufficient justification for overrulingHart v. Hart and considering the question as though it were a new one. On the contrary, it seems to me that we should follow the opinion and conclusion of this court rendered in that case ten years ago.

It is suggested that the expressions on the subject in Hart v. Hart are obiter dicta. But it seems to me that the suggestion is not well founded. The motion in the trial court in that case was for counsel fees and other expenses "incurred or to be incurred" by the applicant. This court in its statement of the facts said, at page 643, that the motion was for an order granting the applicant attorney's fees "incurred or to be incurred". It decided that the statute was broad enough to include the allowance of expenses "incurred or to be incurred" and in the concluding paragraph of the motion it referred to the order of the circuit judge then under review as being one wherein he had disallowed plaintiff's motion for attorney's fees "incurred or to be incurred"; and the cause was remanded to the trial court for further proceedings not inconsistent with the views of this court, i.e., with instructions to make an allowance for expenses "incurred and to be incurred". This court clearly understood at that time from the record before it that the motion was for fees incurred as well as for fees to be incurred and there was ample support for its belief in the record. The mere fact that the applicant in her affidavit supporting the motion said that she had not sufficient means wherewith to pay the expenses to be incurred on the appeal and did not refer to expenses already incurred, cannot avail, as it seems to me, to render the expressions of this court obiter dicta. The issue was raised by the pleadings, irrespective of the state of the evidence. Neither the decision of the lower court nor that of this court was based upon the state of the evidence relating to the wife's necessity. In both courts the question considered was that of power or lack of power under the statute. The fact that the question was not argued in the briefs does not render the opinion obiter dictum. It was presented by the motion then before the court.

In the case at bar there is nothing to show that the attorneys for the wife, in accepting the employment, relied upon the wife's property or credit. That she had no property, other than an equity of no salable value, was shown by testimony adduced in this very case at a hearing before this court on July 27, 1927. It may as well be that the attorneys relied upon the view of the law that an allowance to the wife could be made by this court after the rendition of the services as well as before. The practice in this jurisdiction has been such as to excuse the wife and her counsel if they entertained such a view. Both in the circuit courts and in this court applications for attorneys' fees for the wife, in divorce cases, have been made and granted irrespective of whether the services had been rendered, in whole or in part, or were still to be rendered.

While differing as to the construction that should now be placed on section 2978, R.L. 1925, I concur in the view that that section applies to this court as well as to trial judges and limits our powers with reference to the allowances that may be granted to a wife in divorce cases; and that in this respect the decision in Gomes v. Gomes, 25 Haw. 793, ought not to be followed. Direct appeals to this court are permitted from decrees of the circuit judges in such cases. "The judge" referred to in that section is the court, whether trial or appellate, at the time trying the issues between the parties.

In my opinion the husband should be required to pay to the wife a reasonable amount as a fee for her attorneys.