State By and Through Dept. of Family Services v. Jennings
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State By and Through Dept. of Family Services v. Jennings
1991 WY 132
818 P.2d 1149
Case Number: 91-50
Decided: 10/21/1991
Supreme Court of Wyoming
THE STATE OF WYOMING, BY AND THROUGH THE DEPARTMENT OF FAMILY SERVICES, FORMERLY KNOWN AS THE DIVISION [DEPARTMENT] OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, APPELLANT (DEFENDANT),
v.
ANTHONY
JENNINGS,
APPELLEE (PLAINTIFF).
Appeal from the District
Court, Big HornCounty, Hunter Patrick,
J.
Joseph B. Meyer, Atty.
Gen., Michael Lee Hubbard, Deputy Atty. Gen., and Richard E. Dixon, Asst. Atty.
Gen., for appellee.
Randy L. Royal, Greybull,
for appellee.
Before URBIGKIT, C.J.,
and THOMAS, CARDINE and MACY, JJ., and LEHMAN, District Judge.
OPINION
MACY, Justice.
[¶1.] Appellant State of
Wyoming appeals from the district court's order granting attorney's fees to the
attorney for Appellee Anthony Jennings pursuant to the provisions of Wyo. Stat.
§ 14-2-116 (1986)1 for services rendered by him in
Jennings' paternity suit.
[¶2.] We reverse.
[¶3.] The State raises the
following issues:
I. Is the purpose of
W.S. 14-2-116 to ensure representation of indigents in paternity actions or to
provide attorneys with a means of collecting delinquent accounts?
II. Do the Appellee's
application for payment of fees [and] the court's order upon said application
conform to [the] requirements of W.S. 14-2-116?
[¶4.] Jennings paid an initial
retainer of $800 to his attorney for representing him in an action to determine
paternity and custody of a child. All parties subsequently reached a Stipulation
and Agreement establishing Jennings as the natural father and giving him
temporary custody of his son. Jennings' attorney
unsuccessfully attempted to collect from Jennings the $1,938.50 in fees not covered by
the initial $800 retainer.
[¶5.] After concluding that
Jennings did not have the ability to pay, his attorney requested the district
court to order payment of his fees pursuant to § 14-2-116. On December 13, 1990,
the district court ordered the Big Horn County Department of Health and Social
Services to pay $1,938.50 to Jennings' attorney. The State appeals from that
order.2
[¶6.] Section 14-2-116(a)
provided:
(a) At the pretrial
hearing and in further proceedings any party may be represented by counsel. The
court shall appoint counsel for a party who is financially unable to obtain
counsel, the cost to be assumed by the department of health and social
services.
[¶7.] When we are faced with
a question of statutory interpretation, we must read unambiguous statutory
language so that each word or phrase has meaning and so that no part is
superfluous. Desotell v. State ex rel. Wyoming
Worker's Compensation Division, 767 P.2d 998 (Wyo. 1989); Sanchez v. State, 751 P.2d 1300 (Wyo. 1988). Where a
statute uses the mandatory language "shall," a court must obey the statute as a
court has no right to make the law contrary to what is prescribed by the
legislature. Thomson v. Wyoming In-Stream Flow
Committee, 651 P.2d 778 (Wyo. 1982). Of even more importance in
interpreting this particular statute is the fact that, at common law, a putative
father could not bring an action for paternity. JHL v. BMG, 665 P.2d 491
(Wyo. 1983); A v. X, Y, and Z, 641 P.2d 1222
(Wyo.), cert. denied 459 U.S. 1021, 103 S. Ct. 388, 74 L. Ed. 2d 518 (1982). When statutes are in derogation of the common
law, they must be strictly construed and carefully adhered to. KAC v. SR, 771 P.2d 811 (Wyo. 1989); JHL, 665 P.2d 491; State
v. Stovall, 648 P.2d 543 (Wyo. 1982).
[¶8.] Pursuant to § 14-2-116,
a party had to be financially unable to obtain counsel before the department of
health and social services would assume the cost of his representation. While
the parties disagree as to whether Jennings was
actually financially unable to obtain counsel or whether Jennings' counsel was merely unsuccessful in collecting his
fees, that question does not need to be decided since the court did not appoint
Jennings'
counsel to represent him. Section 14-2-116 stated, "The court shall
appoint counsel for a party who is financially unable to obtain counsel."
(Emphasis added.) The appointment of counsel was a condition precedent to the
department of health and social services' obligation to assume the cost of
representation. In this instance, that condition did not occur.
[¶9.] In addition, Jennings' attorney made a private agreement with Jennings to accept $800 as
a retainer. Only after later determining that Jennings lacked sufficient funds to pay the
remaining balance did his attorney seek payment from the department of health
and social services. If $800 were an insufficient retainer to ensure Jennings' payment, the risk of nonpayment should be borne
by his attorney, not by the State of Wyoming. Wyoming's legislature offers a mechanism for
the State to assume the cost of representation in certain situations; however,
the legislature has not made the State a surety for the payment of attorney's
fees.
[¶10.] Reversed.
FOOTNOTES
1 Amended by 1991
Wyo. Sess.
Laws ch. 161, § 3 effective April 1, 1991.
2 In addition to its
notice of appeal, the State filed a motion with the district court under
W.R.C.P. 60(b) for relief from the order granting attorney's fees to Jennings' attorney. The
district court denied that motion.
CARDINE, Justice, specially
concurring.
[¶11.] The underpinning for this decision is the
court's finding that appellee's attorney was not appointed by the court to
represent him. Our decision in this case is governed by W.S. 14-2-116(a). It
provides that "[t]he court shall appoint counsel for a party who is financially
unable to obtain counsel * * *." The statute is unclear as to when the
appointment must be made for purposes of compensation. The court appointed
counsel to represent Jennings in this case when it ordered payment
of his attorney's fees. The difficulty with this case is that the appointment
occurred after the proceeding requiring an attorney had been concluded. I would
hold that for the right to compensation to accrue under W.S. 14-2-116, the
appointment must be made before or during the proceeding, upon indigency being
established, but not after the proceeding has ended.
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