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14-P-900 Appeals Court

LAURISA C. NEUWIRTH & another1 vs. DONALD NEUWIRTH.

No. 14-P-900.

Middlesex. April 9, 2015. - July 22, 2015.

Present: Grainger, Rubin, & Blake, JJ.

Attorney at Law, Lien. Lien. Judgment. Jurisdiction, Superior 

Court. Superior Court, Jurisdiction.

Complaint for divorce filed in the Middlesex Division of 

the Probate and Family Court Department on May 5, 2009.

A motion to enforce an attorney's lien was heard by Dorothy 

M. Gibson, J., and the entry of a supplemental judgment of 

divorce nisi was directed by her.

Peter H. Rosenthal for the defendant.

Brad W. Greenberg for Smyth Law Offices, P.C.

GRAINGER, J. The defendant husband appeals from an order 

incorporated in a supplemental judgement of divorce nisi 

enforcing an attorney's lien on real property received by the 

husband in the divorce judgment.

 

1 Smyth Law Offices, P.C., the plaintiff in interest in this 

appeal.
2

General Laws c. 221, § 50, states, in relevant part: "From 

the authorized commencement of an action, counterclaim or other 

proceeding in any court . . . the attorney who appears for a 

client in such proceeding shall have a lien for his reasonable 

fees and expenses upon his client’s cause of action, 

counterclaim or claim, upon the judgment, decree or other order 

in his client's favor entered or made in such proceeding, and 

upon the proceeds derived therefrom. Upon the request of the 

client or of the attorney, the court in which the proceeding is 

pending or, if the proceeding is not pending in a court, the 

superior court may determine and enforce the lien" (emphasis 

added).

While the action was pending, the plaintiff, Smyth Law 

Offices, P.C., filed motions to enable collection of attorney's 

fees, including a "first amended motion for att[orne]ys lien" 

entered on the docket September 29, 2011. The judgment of 

divorce is dated November 11, 2011, and was entered on the 

docket November 29, 2011. Thereafter, on February 1, 2012, the 

plaintiff's attorney filed a motion to enforce the attorney's 

lien. On February 9 the docket reflects the entry of a 

"[s]upplemental [j]udgment of [d]ivorce [n]isi dated 2/1/2012 as 

of 11/10/2011."

We are thus called upon to determine whether the "motion to 

enforce attorney's lien" could properly be considered by the 
3

Probate Court under this sequence of events. We conclude that 

it cannot.

While we are not unsympathetic to the effort made to 

dispose of an issue that was initially raised during the 

pendency of the proceeding, the statutory language is clear.

Enforcement of the lien is to be sought in the Superior Court 

after entry of judgment.

2 An attempt to revive the pendency of 

proceedings nunc pro tunc for the sole purpose of determining or 

enforcing an attorney's lien is an attempt to avoid application 

of the statute, and must be rejected.

3 

The motion filed on September 29, 2011, was timely; any 

ruling or other action taken by the court in connection with 

that motion is the law of the case. Any determination, and any 

enforcement of the attorney's lien, on or after November 29,

2011, including that reflected in the supplemental judgment, is 

vacated.

So ordered.

 

2 We are also unpersuaded that the proceeding is still 

"pending" during the nisi period after the judgment is entered 

in the docket and the period allowed for notice of appeal to be 

filed has begun to run.

3 We note that a contrary result would not only require the 

ability to reopen proceedings for the sole purpose of pursuing 

an attorney's lien, but would require a ruling that the 

proceedings were "pending" before they were reopened.