1120298 — WRIT QUASHED. NO OPINION.
1120530 — WRIT QUASHED. NO OPINION.
STUART, BOLIN, PARKER, SHAW, and MAIN, JJ., concur.
MOORE, C.J., and MURDOCK, J., dissent.
BRYAN, J., recuses himself.
MOORE, Chief Justice (dissenting).
Larry Heath Miller was awarded attorney fees from Robert Baker and Sheila Baker and Kenneth Cooper and Barbara Cooper after the Bakers and the Coopers intervened in a dispute between Miller and his wife during divorce proceedings concerning custody of their child. The Bakers and the Coopers appealed. The Court of Civil Appeals affirmed. After granting the Bakers' and the Coopers' petitions for the writ of certiorari, the Court requested supplemental briefing from the parties as to whether Ex parte Handley, 460 So.2d 167 (Ala.1984), upon which the trial court appeared to rely for its award of attorney fees, should be overruled.
Andrea Miller ("the wife") filed for divorce from Larry Heath Miller ("the husband"). The husband counterclaimed for divorce and requested that the trial court order the wife to pay his attorney fees. The wife's father and stepmother, Kenneth Cooper and Barbara Cooper ("the maternal grandparents"), moved to intervene and petitioned for custody, alleging unfitness, instability, alcohol abuse, and drug
Upon the final judgment of divorce, the trial court awarded sole custody of the child to the husband, awarded visitation to the mother and to the maternal grandparents and the paternal grandparents, and required the maternal grandparents and the paternal grandparents each to pay $5,000 in attorney fees to the husband's attorneys. In his objection to the maternal grandparents' motion to intervene, the husband had claimed that he was unable to pay his attorneys and had requested attorney fees from the maternal grandparents to defend against their petition for custody. The husband also testified at trial that he was unable to pay his attorneys. The trial court's order did not specify the legal basis for awarding attorney fees to the husband.
The maternal grandparents and the paternal grandparents (collectively "the grandparents") appealed but challenged only the award of attorney fees. The Court of Civil Appeals affirmed the judgment of the trial court without an opinion. The maternal grandparents and the paternal grandparents then petitioned separately for a writ of certiorari, which this Court granted and now quashes.
"This Court has stated that "`[t]he determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed... absent an abuse of that discretion."'" Beal Bank, SSB v. Schilleci, 896 So.2d 395, 400 (Ala.2004) (quoting State Bd. of Educ. v. Waldrop, 840 So.2d 893, 896 (Ala.2002), quoting in turn Ex parte Edwards, 601 So.2d 82, 85 (Ala.1992)). However, "`"[q]uestions of law are reviewed de novo."'" Ruttenberg v. Friedman, 97 So.3d 114, 134 (Ala.2012) (quoting Ex parte Terry, 957 So.2d 455, 457 (Ala.2006), quoting in turn Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004)).
"`"In Alabama and most other jurisdictions, the general rule is that attorney's fees and expenses of litigation are not recoverable as damages, in [the] absence of a contractual or statutory duty, other than [by] a few recognized equity principles."'"
As stated above, Handley stands for the proposition that a trial court has equitable authority to grant a natural mother attorney fees for successfully defending an attempt by grandparents to gain custody of minor children. In Handley, the paternal grandparents sought custody of their grandchildren, claiming that it was not in the children's best interests to remain with the mother. Handley, 460 So.2d at 168. The mother counterclaimed, seeking reasonable attorney fees. The trial court denied the grandparents' request for custody and awarded the mother attorney fees. The Court of Civil Appeals reversed the award of attorney fees to the mother. Id.
On certiorari review, this Court reversed the judgment of the Court of Civil Appeals, holding as a matter of first impression that a trial court has equitable authority to award attorney fees to a mother who has successfully defended against a custody action brought by the grandparents. 460 So.2d at 168, 170. This Court reasoned that such a rule was equitable because "[i]n order to defend her right to the continued custody of her children, which the trial court determined was in their best interest, the mother was completely justified in having counsel to aid her." 460 So.2d at 169. The Court also cited Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1968), which upheld an award of attorney fees from one spouse to another in a divorce proceeding. The Handley Court reasoned that the award in Brock "did not turn so much on the relationship of the parties as it did on the fact that the mother found it necessary to hire counsel and resort to judicial proceedings to get relief." 460 So.2d at 170. The four dissenters, however, argued that the Court's reliance on Brock was misplaced and accused the majority of creating a new rule as a policy matter instead of recognizing a rule in equity. 460 So.2d at 170-71 (Torbert, C.J., dissenting, joined by Faulkner, Almon, and Shores, JJ.).
The question whether a trial court has equitable authority to award a prevailing parent attorney fees from unsuccessful intervening grandparents turns on the true meaning of equity. Sir William Blackstone defined equity in this manner:
1 William Blackstone, Commentaries *61-62 (footnotes omitted). Thus, Blackstone's understanding was not that equity gave a judge the power to create a new rule when injustice existed; rather, it gave a judge the power to correct an application of the law when the letter of the law contradicted the spirit of the law. Blackstone was very concerned about the danger of the former view. He continued:
Id. at *61-62.
Blackstone went on to say that judges could use equitable power when "some collateral matter arises out of the general words, and happens to be unreasonable." 1 Blackstone, at *91. By the time Blackstone wrote his Commentaries, equity cases were usually limited to cases involving
Blackstone's definition of equity carried over into American jurisprudence. Shortly after our country's founding, and within a decade of Alabama's admission to the Union as a state, Noah Webster defined "equity" as follows:
Noah Webster, An American Dictionary of the English Language (1828).
Likewise, Justice Joseph Story's treatise on equity reflected Blackstone's view. Story described the jurisdiction of an equity court this way: "Perhaps the most general, if not the most precise, description of a Court of Equity, in the English and American sense, is, that it has jurisdiction in cases of rights, recognized and protected by the municipal jurisprudence, where a plain, adequate, and complete remedy cannot be had in the Courts of Common Law." 1 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America § 33 (14th ed.1918) (emphasis added; footnotes omitted). Story also recognized that it was an erroneous view of equity to fail to distinguish between the "general sense of equity, which is equivalent to universal or natural justice... [and] its technical sense, which is descriptive of the exercise of jurisdiction over peculiar rights and remedies." Id. at § 34 (emphasis added). The United States Supreme Court has shared Justice Story's concerns about the danger of failing to distinguish between the two senses of equity:
Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 332, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999) (Scalia, J., for the Court) (quoting 1 Joseph Story, supra at 19).
These principles also have been recognized in Alabama jurisprudence. This Court has stated:
Waldron v. Simmons, 28 Ala. 629, 633 (1856) (emphasis added).
In addition to this Court's explicit recognition in Waldron of Alabama's adoption of England's equity jurisdiction and jurisprudence as it existed before the American Revolution, this Court has also recognized the fundamental principles of that system as discussed by Blackstone and Story. See Tiger Motor Co. v. McMurtry, 284 Ala. 283, 287, 224 So.2d 638, 641 (1969) ("Our decisions do hold that equity jurisdiction cannot be invoked ... when complainant's remedy at law, either by way of action or defense, is plain, adequate, and complete."); Smith v. Roney, 182 Ala. 540, 543-44, 62 So. 753, 754 (1913) ("It is, of course, a truism that the system of equity jurisprudence was formed for the purpose of supplementing the law and of furnishing remedies for wrongs for which the law was, by reason of the unbending and inflexible character of its rules, unable to furnish a remedy. It therefore soon became a truism that, as a general rule, a court of equity would withhold relief to any suitor who possessed, for his particular wrong, a plain and adequate legal remedy."); Saltonstall v. Gordon, 33 Ala. 149, 151 (1858) (citing Justice Story's treatise for the proposition that equitable jurisdiction over fraud cases requires that the defrauded party must have a legal right, not just a moral right, to know the concealed information); and Henry v. Thompson, Minor 209, 233 (Ala.1824) (opinion of Saffold, J.) (applying "equitable construction" to a statute by interpreting it according to its "true spirit and design"). Thus, the principles espoused above by Blackstone and Story are not new to Alabama's equity jurisprudence but, rather, provide the foundation for that jurisprudence.
With these principles in mind, I turn to the question whether Handley was decided correctly. Handley could have been decided correctly under only one of two circumstances: if it was decided on a recognized ground of equity, Tolar Constr., 944 So.2d at 152, or if it was a new application of true equitable power. Recognized grounds of equity include the common-fund doctrine, the substantial-benefit doctrine, contempt, and bad-faith litigation. John F. Vargo, The American Rule on Attorney Fee Allocation: The Injured Person's Access to Justice, 42 Am. U.L.Rev. 1567, 1579-87 (1993); see also State Bd. of Educ. v. Waldrop, 840 So.2d at 897 (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 275, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) (listing the same exceptions)). None of these grounds were at issue in Handley; therefore Handley cannot be justified by the recognized-grounds-of-equity exception to the American rule, which provides that, subject to certain exceptions, "all litigants, even the prevailing one, must bear their own attorney's fees." Black's Law Dictionary 98 (9th ed. 2009).
The final question is whether Handley was a new application of true equitable power. As discussed above, equitable power is the power to apply a rule according to its spirit when the letter of the rule, by reason of its universality, goes beyond the spirit of the rule. 1 Blackstone, at *61-62. At common law, a party would typically bear his own fees unless a court of equity found that the losing party acted in an abusive manner or a common-law
The grandparents mention briefly for the sake of argument that it might be possible to construe §§ 30-2-50 through -52, Ala.Code 1975, as granting a trial court authority to award attorney fees to a parent from a third party. (See petitioners' brief, at 8.) If these statutes could be equitably construed in the manner described by the grandparents, then Handley could be upheld. Those statutes provide:
§ 30-2-50, Ala.Code 1975.
§ 30-2-51(a), Ala.Code 1975.
§ 30-2-52, Ala.Code 1975.
These statutes have been construed to allow an award of attorney fees "as expense money on like principles as alimony pendente lite." Smith v. Smith, 57 Ala. App. 615, 330 So.2d 439 (Ala.Civ.App. 1976).
The Handley Court rejected the proposition that attorney fees arising out of divorce proceedings rest on the existence of a marital relationship and instead focused on the necessity of the parent to hire counsel. Handley, 460 So.2d at 169-70. However, in light of the discussion above, it is clear that the Handley Court was mistaken. At best, the Handley Court confused the jurisprudential sense of equity — applying the law according to its purpose — with the generic sense of equity, which is synonymous with natural justice.
Therefore, because Handley was not justified by the equitable principles on which it was supposedly based, it should be overruled.
Ex parte Handley, 460 So.2d 167 (Ala. 1984), was not only an aberration from true equity jurisprudence but was also an attempt by this Court to make new law, which we are constitutionally forbidden from doing. Art. I, § 43, Ala. Const. 1901 ("[T]he judicial [department] shall never exercise the legislative and executive powers, or either of them; to the end that [the government of this state] may be a government of laws and not of men."). Moreover, Handley's misunderstanding of equity has the potential to "destroy all law, and leave the decision of every question entirely in the breast of the judge," which would "make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind." 1 Blackstone, at *62. My hope is that the Court will be more open to overruling Handley upon a direct challenge in the future. However, because I believe that "[o]ur duty is to enunciate the law on the record facts" even though "none of the parties declaimed the applicable law," Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d at 960, and because I believe that enunciating the law on the factual record of this case would require overruling Handley, I respectfully dissent.
Hodurski, 899 So.2d at 960 (quoting Forshey, 284 F.3d at 1357 n. 20, quoting in turn Empire Life Ins. Co., 468 F.2d at 334 (emphasis added)). See also Travelers Indem. Co. of Connecticut v. Miller, 86 So.3d 338, 347 (Ala. 2011) (overruling a case while expressly noting that the Court had not been asked to do so); Ex parte J.E. Estes Wood Co., 42 So.3d 104, 112 (Ala.2010) (Lyons, J., concurring specially) (noting that this Court had overruled a case without being asked); and Ex parte Carter, 889 So.2d 528, 533 (Ala.2004) (overruling cases the petitioner attempted to distinguish but did not ask the Court to overrule, along with several other cases). In this case, because Handley forms the jurisprudential basis for the erroneous decision below, I believe this Court is free to overrule Handley even without the request of the parties in this case to do so.
Missouri v. Jenkins, 515 U.S. 70, 127-28, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Thomas, J., concurring).
