Cardinal & Satchel, P.C. v. Curtiss (CA2 9/3/10)

The holding here is that legal fees to get a divorce can be a community debt.

The plaintiff law firm represented Mrs. Curtiss in a divorce but she died before the decree was issued. So the firm sued her husband for its fees, on the theory that since the divorce wasn’t final yet her fees were a community debt. (It also sued her estate but this opinion does not deal substantively with that part of the case.) The trial court granted Mr. Curtiss’ motion to dismiss for failure to state a claim; it ruled that divorce fees can’t be a community debt because they’re incurred to destroy the community.

The Court of Appeals rules that divorce fees can be a community debt and that the trial court therefore shouldn’t have ruled on the issue as a matter of law. Community debts are intended to benefit the community, though that need not be the primary intention. The court decides that divorce fees can benefit the community by ensuring “the orderly and lawful division of assets, including temporary orders which protect community assets.” That’s a bit like saying that execution is for the benefit of the accused – orderly and lawful, and in the mean time he’s protected in a warm, comfy jail cell. Division and protection are of course not for the benefit of the late community but for that of the resulting individuals. And so the court offers another reason: divorce fees benefit the community because “the advice of counsel and the entry of temporary orders providing for a spouse‟s necessary living expenses may, when coupled with mediation or counseling, actually preserve the marriage.” How temporary spousal maintenance preserves a marriage is obscure. But mediation and counseling saving a marriage – maybe the court’s on to something. Except that when we last knew (we don’t pretend to be divorce experts) mediation was a necessary part of the process – and normally resented by all involved – not the result of counsel’s sage wisdom and valuable advice.

When all else fails there’s the “think of the children” argument, and so here. “Attorneys for the spouses also play a role in benefiting the children of the community in dissolution.” That’s an interesting notion, that your kids aren’t yours but instead your community’s. Its orderly and lawful death is therefore a benefit for them, too. The court actually cites a case for this: a New Mexico case holding squarely that divorce fees are not community debts but also holding that debts to benefit children can be – because the New Mexico statute specifically includes “dependants,” not just “community.”

Speaking of when all else fails, we spoke too soon. A Louisiana statute says that divorce costs are community. People used to think that nobody outside Louisiana used Louisiana authority except in moments of panic. Even its community property law is unique, based on the Code Napoleon rather than Spanish tradition.   Perhaps the court simply wanted the frisson of using precedent from a legal system that does not, at least in theory, use precedent.

So the court remands “for further proceedings consistent with this opinion.” That means  a motion for summary judgment, the law firm arguing that the wife “objectively” intended to benefit the community. How’s the trial court going to determine that? By considering “the surrounding circumstances at the time of the transaction.” Yep, analyzing surrounding circumstances is just the stuff of summary judgment, all right. But if not then the court can presumably hold a trial to find out if the wife, in hiring lawyers to get her a divorce, “objectively” really wanted mediation to save the marriage, or to improve the lot of the “community’s” children, or some such.