SELVIN WEINER v. DILLER (1994)

 This appeal raises an apparently unique issue:  whether or not attorneys, in a family law setting, may recover fees for defending an appeal challenging a fee award in their favor brought by their own client and her ex spouse.   We find that they may.

STATEMENT OF FACTS

Dorothy Diller (respondent) and Stanley Diller culminated a 28 year marriage on November 26, 1985, when a judgment of dissolution of marriage, status only, was entered.   All other issues were bifurcated and the court reserved jurisdiction over all remaining issues.   Thereafter, the parties began to litigate the remaining issues.   Respondent retained Selvin & Weiner, A Professional Corporation (appellant) in May 1986, and it represented her through the entry of further judgment on reserved issues.

One of the main contested issues was attorneys' fees;  who would pay for them, how they would be allocated and how much should be awarded, if any.   On October 19, 1987, the parties entered into a stipulation regarding further trial proceedings which stipulation contained the following:  “25.   The court will receive testimony and other evidence concerning attorneys' fees and litigation costs, the reasonable value thereof, the necessity thereof, the evaluation thereof, and the assessment, if any, to either party, their respective attorneys and/or to the community.   The court will permit each side one and one-half (1–1/2) days on this issue after depositions [of the attorneys have been taken] ․ and appropriate documentation has been filed setting forth the direct testimony of each attorney in connection with such claims for attorneys' fees and costs.   The bulk of the court testimony is contemplated as cross examination of a particular declarant.”   The stipulation was signed by all parties, the attorneys, and the trial court signed an order that the “trial continue forthwith in conformity with this abbreviated trial procedure described in the Consent, Waiver and Stipulation Agreement.”

After three and a half years of bitter litigation, including four months of trial, the dissolution was concluded with the trial court rendering a further judgment on reserved issues on April 11, 1988.   The trial court found the reasonable value of appellant's services, through trial, to be $1,719,347 and an additional sum of $49,444 for costs and attorneys' fees since trial and up through entry of judgment.   The trial court ordered that appellant be paid out of the community property of the parties.¹  Thereafter appellant was substituted out as counsel for respondent.

In connection with the fee award, the court made the following findings, among others:  “Each party had an emotional need to have their positions in this bitter family law action presented in the manner they demanded of and expected of their lawyers to conduct themselves as the parties' lawyer in this family law action.   The legal services of Selvin and Weiner, A Professional Corporation, rendered for [respondent] and the legal services of Robinson, Robinson & Phillips, Inc., rendered for [Stanley Diller] were necessary in order to present to the court not only the [respondent's] and [Stanley Diller's] financial and property contentions but, unfortunately, to present the bizarre, venal, evasive, evidence each party felt was necessary often despite their lawyers contrary advice.”

Respondent and Stanley Diller appealed the award of attorneys' fees in favor of each set of attorneys.   The award was affirmed.   The California Supreme Court denied review, as did the United States Supreme Court.   The Court of Appeal issued a remittitur providing that appellants recover “costs” on appeal.

On August 12, 1991, appellant filed a memorandum of costs on appeal seeking costs of $6,635.64 and attorneys' fees in the sum of $214,488.02 incurred in defense of the appeal.   Respondent and Stanley Diller filed a motion to tax costs attacking the attorneys' fees on the ground, inter alia, that no legal basis existed upon which attorneys' fees could be awarded.   Appellant opposed the motion, and on December 24, 1991, the trial court granted the motion striking the attorneys' fees making the following findings:  “1.   The family law court does not have jurisdiction to award attorney's fees based upon an appeal and a remittitur;  and [¶] 2.   The appropriate forum for S & W to seek the attorneys' fees claimed in its memorandum of costs on appeal is through an independent action for fees.”

Appellant then filed this appeal from the order of the court striking the attorneys' fees.

DISCUSSION

Appellant makes two primary arguments:  (1) that the trial court had jurisdiction under Civil Code section 4351 to award attorneys' fees, and therefore appellant does not have to file an independent action to recover fees;  and (2) the trial court had jurisdiction to award attorneys' fees on appeal based upon the October 1987 stipulation and sections 4370, 4370.5 and 4370.6.²

Respondent argues that this is essentially a fee dispute and that the “American rule” should be applied.  “Under the American rule, as a general proposition each party must pay his [or her] own attorney fees.   This concept is embodied in section 1021 of the Code of Civil Procedure, which provides that each party is to bear his own attorney fees unless a statute or the agreement of the parties provides otherwise.”  (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504, 198 Cal.Rptr. 551, 674 P.2d 253, fn. omitted.)

 We agree with appellant.   Family law matters are a specific exception to the American rule because attorneys' fees are provided for by statute.

Section 4351 states in part:  “In proceedings under this part, the superior court has jurisdiction to inquire into and render any judgment and make such orders as are appropriate concerning the status of the marriage, the custody and support of minor children of the marriage and children for whom support is authorized under Section 206, the support of either party, the settlement of the property rights of the parties and the award of attorneys' fees and costs.”

 Section 4370, subdivision (a), states:  “During the pendency of any proceeding under this part, the court may order any party, except a governmental entity, to pay such amount as may be reasonably necessary for the cost of maintaining or defending the proceeding and for attorneys' fees;  and from time to time and before entry of judgment, the court may augment or modify the original award for costs and attorneys' fees as may be reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto, including after any appeal has been concluded.   In respect to services rendered or costs incurred after the entry of judgment, the court may award such costs and attorneys' fees as may be reasonably necessary to maintain or defend any subsequent proceeding, and may augment or modify any award so made, including after any appeal has been concluded.”  (Emphasis added;  see also In re Marriage of MacFarland & Lang (1992) 8 Cal.App.4th 247, 258, 10 Cal.Rptr.2d 157.) ³

Section 4371 provides that:  “When the court orders one of the parties to pay costs and attorneys' fees for the benefit of the other party, such costs and fees may, in the discretion of the court, be made payable in whole or in part to the attorney entitled thereto.   An order of the court providing for payment of such costs and fees may be enforced directly by such attorney in his own name or by the party in whose behalf such order was made, provided that if such attorney has ceased to be such, it shall be a condition of such enforcement, and must appear of record, that such attorney shall have given to his former client or successor counsel 10 days' written notice of his application for such enforcement, and during such period the client may file in such proceeding a motion directed to such former attorney for partial or total reallocation of fees and costs to cover the services and cost of successor counsel, in which event such proceeding shall be stayed until the court has resolved such motion.”  (Emphasis added.)

The foregoing statutes clearly allow an award of attorneys' fees for defending an appeal and also allow the law firm to enforce the award in the family law action and in its own name.   The initial fees awarded in this case were pursuant to sections 4370 and 4370.5.⁴  Appellant's claim for fees arose in the context of family law litigation, the parties stipulated that attorneys' fees were an issue in the litigation and the award was affirmed on these grounds in the initial appellate opinion.

The trial court erred when it held that it had no jurisdiction to consider a further award of attorneys' fees to appellant based upon the work done on appeal and that appellant should be relegated to a separate action to recover the fees.

The order appealed from is reversed with instructions to the trial court to entertain appellant's claim for attorneys' fees.   Appellant is to have its costs on appeal.

HASTINGS, Associate Justice.

ARLEIGH M. WOODS, P.J., and EPSTEIN, J., concur.