Thomas D. Berry - Page 11




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            1939); Ballard v. Caperton, 59 Ky. 412 (Ky. 1859); see also                                
            Zinsmeister v. Commissioner, T.C. Memo. 2000-364 (interpreting                             
            Minnesota law); Smith v. Commissioner, T.C. Memo. 1998-166                                 
            (interpreting Georgia law).  But cf. Hogsett v. Hogsett, 409                               
            S.W.2d 232 (Mo. Ct. App. 1966); Greer v. Greer, 130 P.2d 1050                              
            (Colo. 1942).                                                                              
            Courts upholding the viability of awards of attorney’s fees                                
            frequently focus on the public policy underlying the statutory                             
            provisions authorizing such awards; i.e., providing otherwise                              
            needy spouses with the means to retain counsel in divorce                                  
            actions.  See Stackhouse v. Stackhouse, supra at 726; Williams v.                          
            Williams, supra at 275-276.  Such courts point out that a                                  
            spouse’s access to counsel would be unduly restricted if counsel                           
            were required to bear the risk that his or her client might not                            
            survive until a final divorce decree is entered.  On the other                             
            hand, courts holding that awards of attorney’s fees in divorce                             
            proceedings do not survive the death of a spouse merely seek to                            
            impose a bright line rule that such awards abate with the death                            
            of a spouse before the entry of a divorce decree.                                          
                  Considering Oklahoma case law, as well as the policy                                 
            underlying awards of attorney’s fees in divorce actions, we                                
            conclude that the Supreme Court of Oklahoma would hold that                                
            petitioner would remain liable for the attorney’s fees that the                            
            State court awarded to Mrs. Berry in 1996 even if Mrs. Berry had                           






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