CONCURRING BY SEPARATE OPINION:
I agree with Justice Noble that Attorney Stone has no statutory attorney’s lien or contractual lien on the marital estate of Pennie and John Dubarry. I write separately to emphasize somewhat different reasoning regarding the statutory lien.
Justice Noble’s conclusion that “KRS 376.460 does not apply in dissolution property division matters” focuses our attention on the kind of lawsuit involved (a dissolution of marriage action); I would focus instead on the nature of the property being subjected to a lien. The phrase “dissolution property division matters” also connotes to me a broader exclusion of matters from the attorney’s lien than my reading of the statute allows.
KRS 376.460 does not differentiate among the kinds of cases to which it applies. It applies to “all claims ... put into [an attorney’s] hands for suit or collection or upon which suit has been instituted!.]” There is no general exclusion for dissolution of marriage cases brought under KRS Chapter 403. Instead, the statutory language limits the availability of an attorney’s lien to claims for “a recovery of money or property” with the lien for the attorney’s fee attached “upon the judgment recovered.”
A claim in a marriage dissolution action for the equitable division of the marital estate is not a claim for the “recovery” of money or property, and for that reason the lien provided by KRS 376.460 does not extend to a judgment or decree allocating the litigants’ shares of the marital estate. One who has been assigned a share of his or her own marital estate has not “recovered” anything.
The plain language of KRS 376.460 does not preclude the availability of an attorney’s lien to other property-related aspects of a divorce case under KRS Chapter 403. For example, the divorce litigant’s claim for restoration of pre-marital or non-marital property entangled in the marital estate is a claim for the “recovery of money or properly” under KRS 376.460, and a decree or judgment that secures the restoration of the property or its financial equivalent would be subject to an attorney’s lien under KRS 376.460.1 would not otherwise attempt to illustrate the possible situations in which a KRS 376.460 lien would attach to the property interests litigated in a divorce ease.
I read Justice Noble’s opinion as imputing to KRS 376.460 a broad exclusion for dissolution related property matters, allowing a lien only for “ancillary” matters that may by chance be included. I read KRS 376.460 as having broad application to every claim for recovery of money or property, which, therefore, does not include the apportionment of a marital estate into just proportions under KRS Chapter 403. Although we approach the analysis from different perspectives we arrive at the same conclusion.
Wright, J., joins.