dissenting.
San Juan, Puerto Rico, November 22, 1967
I dissent. The professional services rendered to the appellant, which give rise to this ruling, were rendered in the federal courts within a proceeding established by the Bankruptcy Act. In the proceedings directed at challenging the first payment arrangement the trial court granted appellant the costs but not attorney’s fees. Later the United States District Court for the District of Puerto Rico affirmed the denial of any attorney’s fees for the services rendered to appellant during the prosecution of the action in the federal courts in support of the payment of the allowance for support which was granted to her in the divorce proceeding filed in the trial court. Said decision, although subject to review, cannot be collaterally attacked. Chicot County Dist. v. Bank, 308 U.S. 371 (1940). In Brown v. Gerdes, 321 U.S. 178 (1944), it was decided that the bankruptcy court has exclusive jurisdiction to determine the amount which shall be allowed out of the bankrupt estate for services of attorneys who, by authority of the bankruptcy court, represented the respondent company in litigation in a state court, for the purpose of recovering certain claims which the com*452pany had against its former officers and directors; With more reason we must conclude that said jurisdiction is exclusive with relation to the award of fees for services rendered by an attorney in a proceeding established by the Bankruptcy Act in the federal court in question.
The cases cited in the majority opinion do not support its conclusion. In Allison v. Allison, 372 P.2d 946 (Col. 1962); Damon v. Damon, 283 F.2d 571 (1st Cir. 1960); and In Re Brennen, 39 F.Supp. 1022 (D.C.N.Y. 1941), there were involved, contrary to the case before us, attorney’s fees awarded to the plaintiff in an action for divorce by the state court which heard said action and granted the divorce. The complaint having been filed against the husband fpr these fees, the latter alleged in Allison, supra, the defense that he had been declared bankrupt. The court concluded in this case that since the attorney’s fees in question are granted for the benefit of the wife, they are on the same basis.as alimony or other forms of support by the husband to wife, and since a judgment for alimony is nondischargeable, it follows that an order to pay the wife her solicitor’s fees is likewise undischargeable. In Damon it was said that the attorney’s fees are made on the same basis as alimony and therefore the claim for counsel fees is not dischargeable in bankruptcy. Therefore, it was said in this case that the bankrupt could not be discharged, on his application under the Bankruptcy Act for writ of habeas corpus, from imprisonment under execution of judgment for attorney’s fees. The Brennen case sustains the same principle.
The foregoing cases involved attorney’s fees, awarded by the court which heard the divorce, for services rendered in. that action, and the question was whether the husband’s declaration of bankruptcy did not release him from that judgment, and the. answer was no. But, in the case before us attorney’s fees were claimed in the federal court for' ■services rendered • there in a. bankruptcy' proceeding to safe*453guard the right of alimony granted to the wife in her action for divorce in the state Superior Court. Since the federal court decided that under the Bankruptcy Act attorney’s fees could not he awarded for said services, an appeal was taken to the state court requesting them, and the latter refused with good reason, in my opinion, since it was not proper for the state court to award attorney’s fees for services rendered in the federal court, after the latter had denied them.
The cases of Valdés v. District Court, 67 P.R.R. 288, 291 (1947); Vargas v. Jusino, 71 P.R.R. 362, 368 (1950); Conesa v. District Court, 72 P.R.R. 65, 69 (1951); and García v. Acevedo, 78 P.R.R. 580, 587 (1955), sustain the well-established doctrine in this jurisdiction that in actions for support, attorney’s fees are a part of the support to which minor children are entitled under § 142 of the Civil Code (31 L.P.R.A. § 561), even if defendant were not obstinate. In Pérez v. District Court, 69 P.R.R. 4, 17 (1948), we affirmed the judgment of the judge on vacation of this Court determining that the divorced wife be given an advance payment of certain sums from the property of the community partnership in order to pay for her necessities and for attorney’s fees while the principal suit for liquidation of the community property was pending.
But in none of the former cases have we gone so far as to award attorney’s fees for services rendered in a bankruptcy proceeding in the federal court, or for such services in any other court, particularly when, the former court denied them.