Williams v. Williams

WIEAND, Judge,

concurring and dissenting:

I agree that the order of the learned trial judge must be affirmed. I disagree with the notion advanced by the author of the lead opinion that the courts in Pennsylvania can award counsel fees incurred by a party in prosecuting or defending a separate action which has been litigated finally in the courts of another state. In my judgment, the trial court correctly denied a claim for counsel fees incurred by the wife in a separate action in Florida.

The American rule is that each party in an adversary proceeding must pay his or her own counsel fees, absent an express statutory allowance of counsel fees, a clear agreement between the parties, or some other established exception. Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 300-301 , 344 A.2d 837, 842 (1975); Shapiro v. Magaziner, 418 Pa. 278, 280 , 210 A.2d 890, 892 (1965). In the instant case, there is neither statutory authority nor agreement which would compel the husband to pay counsel fees incurred by his wife in a separate action *162 between the two parties in Florida. The allowance of counsel fees in that action should be determined according to the law of Florida and, if recoverable, should be allowed only as an incident of the principal action in that State.

It is elementary that the judgment of every court on matters within its jurisdiction is conclusive on every other court. 20 P.L.E. Judgments § 251. “The doctrine of res judicata precludes the parties from relitigating controversies which have been settled by a valid final judgment of a court of competent jurisdiction____” Id. “A single claim or demand cannot be divided and made the subject of several actions, and if actions are brought for different parts of a single demand a judgment on the merits in one is available as a bar to the others.” 20 P.L.E. Judgments § 258. See: Spinelli v. Maxwell, 430 Pa. 478 , 243 A.2d 425 (1968).

The right to recover counsel fees, in those situations in which it is allowed, is a part of and must be asserted in the principal action. A separate action to recover counsel fees is not permitted; it constitutes an impermissible splitting of a single cause of action. Goldberg v. Goldberg, 306 Pa.Super. 504, 506 , 452 A.2d 838, 839 (1982); Leomporra v. American Baking Co., 198 Pa.Super. 545, 549-550 , 178 A.2d 806, 807 (1962). The allowance of counsel fees, where recoverable, rests largely in the discretion of the trial court which heard the principal action. In re Ward’s Estate, 350 Pa. 144, 148 , 38 A.2d 50, 52 (1944). Its decision is not subject to later review by the courts of another jurisdiction.

The claim for counsel fees which the author of the lead opinion would allow was an incident of the action which the wife prosecuted against the husband in Florida. The judgment entered by the Florida court in that action is final. It is final as to issues actually litigated and also as to issues which might have been litigated therein. Whether or not a claim for counsel fees was made in the Florida action, the final judgment entered therein is a bar to a claim for those counsel fees in a subsequent action in Pennsylvania.

The Pennsylvania Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq., does not purport to authorize *163 Pennsylvania divorce courts to award counsel fees to the parties on account of separate litigation between the parties in another state. 1 The author of the lead opinion has been unable to cite any authority that would permit the courts of Pennsylvania to make awards for counsel fees incurred in prosecuting or defending a separate action in another jurisdiction. My research also has disclosed no such authority. To allow Pennsylvania courts to second guess the courts of another jurisdiction with respect to counsel fees incurred in litigation pursued in the courts of such other jurisdiction would be improvident, unwieldy, and unwise and would violate principles of res judicata.

Therefore, I disagree with that portion of the lead opinion which would make in this action an award of counsel fees incurred by the wife in a separate action in Florida. The order of the trial court must be, as it is, affirmed.

. Section 401(b) of the Divorce Code, 23 P.S. § 401(b) authorizes an award of counsel fees only in connection with the underlying divorce action. It provides that “[t]he court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.”