Musser v. Musser
909 P.2d 37, 1995 WL 620074 (1995)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An attorney's pending contingent fee cases are not considered marital property subject to equitable division in a divorce. Such fees are treated as potential future income because they are not vested, and their value is too remote and speculative until the client actually recovers money.
Facts:
- Sidney A. Musser, Jr. (Husband) and Kenna Musser (Wife) were married.
- Sidney Musser is an attorney whose practice primarily involves representing workers' compensation claimants.
- His legal services are compensated through contingency fee agreements, where he is paid a percentage of the recovery only if his client wins.
- At the time of their separation, Husband had 400 pending workers' compensation cases being handled on a contingency fee basis.
Procedural Posture:
- Sidney A. Musser, Jr. and Kenna Musser initiated a divorce action in an Oklahoma district court (trial court).
- In dividing the marital estate, the trial court included Husband's 400 pending contingent fee cases as 'work in progress' and assigned them a value.
- Husband, the appellant, appealed the trial court's decision to the Oklahoma Court of Appeals.
- Following the Court of Appeals' ruling, Husband, as petitioner, sought a writ of certiorari from the Supreme Court of Oklahoma, which was granted to address the issue of contingent fees as marital property.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Are an attorney's pending contingent fee agreements considered jointly-acquired marital property subject to equitable division in a divorce proceeding?
Opinions:
Majority - Simms, J.
No. Pending contingent fee cases are not jointly-acquired marital property because they do not constitute a vested interest and represent only a potential for future income. The court reasoned that under Oklahoma law, property must be 'acquired by the parties jointly during their marriage' to be divisible. Contingent fees are not acquired until the client recovers money, an event that is speculative and uncertain. Until recovery is achieved, the attorney has no vested right to a fee, only an expectancy. This distinguishes such fees from already-earned assets like accounts receivable and aligns with precedents like Mocnik, which held that future earnings are not marital property. The court found that treating these cases as marital property would involve dividing assets that are too remote, speculative, and uncertain to value, and that any right to payment only materializes upon a successful outcome for the client.
Dissenting - Kauger, V.C.J., and Hodges, J.
The text of the opinion notes that these justices dissented but does not provide the content or reasoning for their dissent.
Analysis:
This decision establishes a clear precedent in Oklahoma that an attorney's potential earnings from contingent fee cases are excluded from the marital estate. It solidifies the distinction between assets acquired during a marriage and speculative future income, protecting professionals from having to divide uncertain earnings. By classifying these fees as future income, the ruling allows courts to consider them when determining support alimony, but not for property division. This holding aligns Oklahoma with jurisdictions that prioritize the speculative nature of such fees over treating them as a divisible contract right, thereby avoiding the practical difficulties of valuation and the ethical issue of fee-sharing with a non-lawyer.
