Stone v. DuBarry

KELLER, J.

CONCURRING IN RESULT ONLY:

I concur with the result in this case. However, I disagree with the reasoning of both the majority and Justice Venters. As both the majority and Justice Venters note, KRS 376.460 states that an attorney lien attaches to “a recovery of money or property.” Both the majority and Justice Venters presume that one cannot “recover” marital property. I disagree.

Recovery is: “1. The regaining or restoration of something lost or taken away. 2. The obtainment of a right to something (esp. damages) by a judgment or decree. 3. [Cjommon recovery. 4. An amount awarded in or collected from a judgment or decree.” RECOVERY, Black’s Law Dictionary (10th ed. 2014). As Justice Venters correctly notes, the “restoration of premarital or non-marital property entangled in the marital estate” would fall squarely within the first definition above—money or property that has been restored.

However, both the majority and Justice Venters ignore the fact that, when a spouse contributes to marital property, that spouse gives up sole ownership in the contributed property because both spouses jointly own and have presumably equal rights to the property. When marital property is divided by the court in a judgment or decree, each party gets free and clear title to that portion of the marital property awarded and gives up any claim to that portion of the marital property that is awarded to the other spouse. Thus, marital property falls within the first definition because each spouse regains, or recovers, an undivided interest in his or her share of the property. Furthermore, marital property falls within the second definition because it is the obtainment of something, free and clear title to property, by judgment. Finally, marital property falls within the fourth definition, because, when divided, it is “an amount awarded in ... a judgment or decree.”

In this case, Pennie ceded any ownership interest she had in the marital residence prior to the final judgmenVdecree and before Stone attempted to perfect his lien. Therefore, when Stone attempted to perfect his lien, Pennie retained no interest in the property he attached. If Pennie had retained an interest in the marital residence until the date of sale, then Stone could have attached his lien to her interest. Furthermore, Stone could have attached his lien to the $20,000 that John had agree to pay Pennie, the amount of marital property she recovered through judgment/decree.

Additionally, I note that the majority’s holding has implications beyond domestic cases. Like a married couple, partners in business, shareholders in corporations, and members in LLCs have shared ownership interest in property. Taken to its logical conclusion, the attorney fee lien statute would not apply to any business disputes because the parties are, after all, simply dividing property in which they already have an ownership interest.

Finally, I believe that there are a significant number of statutory attorney fee liens that have been attached to marital property, in particular marital residences. The Court has not given any guidance regarding how to deal with those liens. Do they simply cease to exist as of the date this opinion becomes final? Does a person objecting to the lien have to move to have it removed? Are the attorneys who perfected the liens subject to actions for placing a cloud on title? Do attorneys who have perfected such liens have to remove them? If so, within what time frame? What, if any, ethical implications are there for attorneys who hold such liens? When the Court undertakes what I perceive to be a sea change, I believe it is imperative and the *337duty of the Court to offer guidance to the bench and bar.