#### Karen Anne Krupp, wife of James R. SUTTERFIELD v. James R. SUTTERFIELD.

No. 8574.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 11, 1978.

Rehearing Denied Feb. 14, 1978.

Writ Refused April 7, 1978.

Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for plaintiff-appellant.

Sutterfield & Vickery, James R. Sutter-field, New Orleans, for defendant-appellee.

Before GULOTTA, STOULIG and DU-PLANTIER, JJ.

GULOTTA, Judge.

The sole issue confronting us is whether a divorced wife, who has been granted custody of minor children, is entitled to receive from her divorced husband attorney’s fees incurred in connection with the successful dismissal of the husband’s rule for a change of custody.

In dismissing the rule for attorney’s fees, the trial judge said:

> “There is no basis in law which this Court can find, which would allow it to assess attorney’s fees, by the wife on her behalf against the husband.”

The wife appeals. We affirm.

The general rule relating to assessment of attorney’s fees is that these fees are not recoverable unless provided for by statute or by contract. *Hernandez v. Harson,*237 La. 389, 111 So.2d 320 (1958); *Nassau Realty Co., Inc. v. Brown,*332 So.2d 206 (La.1976).

We have not been cited nor have we found any cases in our jurisprudence where a wife’s attorney’s fees for representation *708in a custody rule were sought and either granted or denied. Furthermore, no statute exists authorizing the payment of attorney’s fees under the circumstances of our case. An interesting line of cases from the Louisiana Supreme Court and from our Courts of Appeal, however, involves a wife’s demand against her husband for her attorney’s fees incurred in connection with a rule against the husband for delinquent alimony and child support.

In *Newson v. Newson,*176 La. 699, 146 So. 473 (1933), a case involving child support, the Louisiana Supreme Court awarded attorney’s fees to the wife incurred in connection with the rule to obtain child support. Thereafter, however, in *Wainwright v. Wainwright,*217 La. 563, 46 So.2d 902 (1950), the court denied the wife’s demand for attorney’s fees in a case involving past due alimony. The *Wainwright*court, without mentioning the earlier *Newson*decision, stated:

> “With regard to the demand and award for attorney’s fees we know of no law and have been referred to none which provides for such fees in a case of this kind. * * *”

The *Wainwright*decision appears to be the last expression (except in subsequent cases where writ applications were denied) of the Louisiana Supreme Court in these cases.

Citing *Wainwright,*this court in *Stoltz*v. *Stoltz,*162 So.2d 103 (La.App.4th Cir. 1964), writ refused, 246 La. 349, 164 So.2d 352 (1964), denied to the wife attorney’s fees incurred in connection with her rule for delinquent alimony and child support. In denying the writ, the Supreme Court said, “Writ refused. No error of law in the judgment.”

The Third Circuit, in the first of a line of three cases, in *Gauthreaux v. Gauthreaux,*315 So.2d 402 (La.App.3d Cir. 1975), awarded attorney’s fees incurred by the wife in prosecuting her action for past due child support. The *Gauthreaux*court followed the earlier Supreme Court decision in *New-son v. Newson,*supra, and concluded that attorney’s fees in these cases is an exception to the general rule involving the assessment of attorney’s fees. Although acknowledging the existence of the *Wainwright*and *Stoltz*cases, the court in *Gau-threaux*stated preference for the *Newson*decision. No writs were applied for in the *Gauthreaux*decision.

Thereafter, the Third Circuit in a majority decision in *Janise v. Janise,*328 So.2d 711 (La.App.3d Cir. 1976), writ refused, 333 So.2d 233 (La.1976), in a past-due child support rule, declined to award attorney’s fees to the wife and declined also to follow the decision of a different panel of the Third Circuit in the *Gauthreaux*case. The *Janise*court followed the rule as represented by Wainwright and *Stoltz.*In denying the writ, the Louisiana Supreme Court stated, “Under the facts found, the result is correct.” 1

Interestingly, still another panel of the Third Circuit, when confronted with the same question involving attorney’s fees in *Baldwin v. Baldwin,*337 So.2d 245 (La.App.3d Cir. 1976), chose to follow the earlier *Gauthreaux*decision of the Third Circuit. Attorney’s fees were awarded in the *Baldwin*case. No writs were applied for in that case.

Recently, in *Stanfield*v. *Stanfield,*342 So.2d 1195 (La.App.2d Cir. 1977), the court declined to award to a wife attorney’s fees incurred in connection with her rule to obtain past due alimony and child support. The *Stanfield*court followed the Supreme Court *Wainwright*decision. No writs were applied for in that case.

Though the foregoing cases involved alimony and child support and not custody, we are inclined toward the view that attorney’s fees are not recoverable by the wife from the husband in custody cases.

The Legislature, by Act 462 of 1977 (LSA-R.S. 9:305), provided for the assess*709ment of attorney’s fees in connection with executory judgments for delinquent alimony and child support payments.2 We find it significant that no attorney’s fees were statutorily provided for in custody cases. This legislative omission is supportive of our conclusion that attorney’s fees are not recoverable in our case.

We are not persuaded by the wife’s argument that she, in defending against the rule brought by the husband for transfer of the custody of the children, was acting for the benefit and welfare of the children and, under these circumstances, the husband should bear the expense incurred on the children’s behalf. The rule for custody in which the husband sought to deprive the wife of the custody of the minor children was directed against her. It is the wife’s suitability for custody which is in issue. The effort of the wife’s attorney is directed toward a showing of this suitability. It is unrealistic to believe that the services of the attorney were rendered toward the children in the custody hearing and not to the wife.

For the same reasons, we reject also the wife’s contention that attorney’s fees, like the extraordinary expense of medical fees incurred on behalf of the children, should be paid by the husband.3

We conclude, therefore, that the mother of minor children, made defendant in a rule for transfer of custody of those children, is not entitled to an award for attorney’s fees to be assessed against the father of the children. Accordingly, the judgment is affirmed.

*AFFIRMED.*

DUPLANTIER, J., dissents.

1

. In his concurrence in the writ denial in *Janise,*Justice Dixon stated that he is of the opinion *Newson v. Newson,*176 La. 699, 146 So. 473 (1933) may be correct, and in the proper case, the question of attorney’s fees for recovering past due alimony should be reconsidered by the Supreme Court.

2

. Act 462 of 1977, in pertinent part, provides:

> “Section 1. Section 305 of Title 9 of the Louisiana Revised Statutes of 1950 is hereby enacted to read as follows:

> § 305. Attorney fees in alimony and child support proceedings

> When the court renders an executory judgment incorporating the payment of child support or alimony in arrears, the court may award reasonable attorney fees in favor of the prevailing party.”

3

. In this connection, the wife, in analogizing attorney’s fees to medical expenses, relies on the case of *Wingo v. Cook,*306 So.2d 370 (La.App.3d Cir. 1975) where one half of extraordinary medical expenses incurred on behalf of the child were ordered paid by the father in addition to monthly support payments.

DUPLANTIER, Judge,

dissenting.

I respectfully dissent. ■ I would reverse and remand for trial on the merits.

Plaintiff, the mother of minor children the custody of whom had been awarded to her, brought a rule against her former husband, the father of the children, seeking reimbursement of attorney fees incurred by her in her successful defense of a prior proceeding by the father, seeking to obtain custody of the children.

The trial judge, having previously dismissed the husband’s suit to change custody after lengthy and protracted hearings, thereafter dismissed the mother’s rule for reimbursement of her attorney expense. While the record is not entirely clear on this point, it is apparent that the district court, in dismissing plaintiff’s claim, maintained defendant’s exception of no cause of action. No testimony seems to have been taken on the date set for hearing.

In my opinion, limited to the particular circumstances in this case, a claim by the mother of a minor child, to whom legal custody had been awarded, against the father for reimbursement of legal expenses incurred by her in her successful defense of a proceeding brought against her to deprive her of the legal custody of the child states a cause of action.

The trial court correctly pointed out in its reasons for judgment that it could find no basis in a statute or reported decision for holding as I would. However, this is not the usual claim for attorney fees prohibited in Louisiana absent a statute or contract between the parties providing therefor. Such attorney fee claims are incidental to a primary claim between the parties for enforcement of a debt or a contract between them. Indeed, in the instant case it is *710merely coincidental that the father was plaintiff in the suit to take custody away from the mother. I would reach the same conclusion if the mother sought reimbursement from the father for legal expenses incurred in maintaining her custody, regardless of who provoked the proceedings to change custody, for the legal expenses were incurred by the mother at least partly for the benefit of the minor children, in the discharge of her duty as their legal custodian to make certain that the welfare and best interest of the children, the paramount issue in the custody proceeding, were properly protected.

In *Wingo v. Cook,**1***the Third Circuit held that the mother may claim reimbursement from the father for unusual medical expenses reasonably incurred by her in treatment of a child’s illness, on the ground that a prior award for child support did not and could not contemplate such unusual expenses and that the child was, of course, entitled to the reasonable medical treatment. I would apply the same reasoning to legal expenses. It is true that the children are not named defendants in a custody proceeding and that perhaps, in determining the amount which the father should be compelled to contribute, consideration should be given to the fact that the attorney’s services in her attempt to retain custody may have benefitted the mother as well as the children. Nevertheless, the paramount issue in the custody proceeding is not the mother’s best interest, nor the father’s, but the children’s.2 Just as the mother would have a duty to secure reasonable medical treatment for her children, even though a prior decree fixing the amount which the father must pay for child support does not take such expenses into consideration, she is equally duty-bound to secure adequate legal representation to make certain that the children’s emotional well-being involved in a custody decision is properly presented to and considered by the court. The father should be compelled to contribute to the reasonable expense, medical or legal, in either instance, for that expense was not taken into consideration in the prior support decree.

The court, in *Wingo,*considered the reasonableness of the medical expenses and found the mother’s decision to incur them reasonable. The same issue of reasonableness is present when a mother employs counsel in a proceeding in which she seeks to retain legal custody of her children. However, the trial court obviously decided that the mother’s decision to attempt to retain custody of her children was reasonable, for the trial court decided that it was to the best interest of the children that they remain with the mother.

If minor children were sued by a stranger for damages, and their legal custodian retained counsel for them to defend the suit, the extraordinary expense involved, not covered by a previous child support decree, should certainly be apportioned between the parents, and the mother-custodian’s rule against the father for reimbursement of legal expenses incurred on the children’s behalf would certainly state a cause of action. The fact that the mother is the named defendant in a proceeding to change her legal custody of the children should not deprive her of the right to seek at least partial reimbursement for legal expenses, although, as previously noted, it may affect the amount of such reimbursement.

I would not at this stage decide the extent of the mother’s claim against the father for reimbursement of attorney’s fees, nor the proportion of such fees which the father should pay, but only that the mother’s claim for reimbursement states a cause of action. Of course, to decide as I suggest may cause courts to have to consider many claims difficult of resolution, in many other situations which could occur in custody proceedings and the legal expenses related thereto. This should be of no consequence *711in the resolution of the particular claim asserted in this case.

1

. La.App., 306 So.2d 370.

2

. *Nethken v. Nethken,*La., 307 So.2d 563; *Estes v. Estes,*261 La. 20, 258 So.2d 857; *Fulco*v. *Fulco,*259 La. 1122, 254 So.2d 603; *Bourque v. Leger,*La.App., 322 So.2d 784; *DeCelle v. DeCelle,*La.App., 313 So.2d 634; *Phelps v. Phelps,*La.App., 258 So.2d 112.