SHOPIRO v. SHOPIRO (1944)

Plaintiff filed an action for separate maintenance on the ground of desertion. A cross-complaint for divorce alleged extreme cruelty. Following a hearing upon an order to show cause the court below made its order requiring appellant forthwith to pay to plaintiff's counsel $7500 attorney's fees and the sum of $300 per month to plaintiff as alimony. Appeal having been lodged in this court from that order, a subsequent hearing was held pursuant to another order to show cause, after which the court entered a second order requiring defendant to pay to plaintiff's counsel the sums of $250 ‘costs on appeal’ and $2500 ‘attorney's fees upon said appeal.’ Appeal from the second order having also been taken, both orders are now before us. Since the first was by Judge Baird, the second by Judge Mosk, they are referred to herein as the Baird order and the Mosk order, respectively.

The principal attack on both orders is based upon the abuse of the court's discretion. Each of such contentions is well founded. In addition thereto the conduct of the court at the first hearing is assigned as error in that ‘the court evinced a state of mind and an arbitrariness that are wholly inconsistent with the exercise of legal discretion.’ While it is not impossible for a trial judge to exhibit impatience while dispensing even-handed justice, yet it must be conceded that the two are not Siamese twins. Whether appellant's criticism is warranted may be readily determined from a review of a portion of the proceedings.

At the conclusion of the testimony Judge Baird announced an award of $300 a month as alimony and $5000 fees for respondent's attorney, ‘with a stipulation that further attorney's fees may be fixed by the trial court if any.’ Thereupon the following occurred:

‘Mr. Sadicoff: So stipulated.

‘Mr. Fulop: If your Honor please, may we have an opportunity to be heard on that question, please?

‘The Court: It won't do you any good.

‘Mr. Fulop: Very well, it won't do any good, but once in a while it seems to me that you might ask counsel to help the Court. You have not read this property settlement agreement, have you?

‘The Court: No, I did not.

‘Mr. Fulop: Very well. I think that is the best evidence of what the parties meant to allow.

‘The Court: I have nothing in front of me but your own statement, and all of the argument won't change my mind. I have got your own statement here of what he has got in the way of property and income.

‘Mr. Fulop: I would like to call your attention, however, to one fact, that these parties entered into an agreement——

‘The Court: If you go into an argument I may raise the attorneys' fees instead of asking for a stipulation.

‘Mr. Fulop: Your Honor has power to do that, and we have power to take an appeal.

‘The Court: Sure, that is right. I will be very glad to let you do that.

‘Mr. Fulop: I think that you ought to give us the courtesy of letting us be heard on a matter of this kind. I would like to call your attention to just one thing, then I will sit down. These parties agreed at the time that they separated. We have two parties here with both having separate estates that they had before they were married. There is no community property, no showing of any community property. They agreed the husband shall pay to the wife $150 a month. We have advised our client that the agreement is void because it was made under peculiar circumstances which need not concern us right now. That was what she agreed to take. The cases all hold, your Honor, that the best evidence of what is reasonable is what the parties have agreed to.

‘The Court: You just stated a minute ago that you thought it was void.

‘Mr. Fulop: That is correct.

‘The Court: Then, there is no agreement.

‘Mr. Fulop: No, but there is evidence of what they have agreed between themselves is reasonable.

‘The Court: This Court decides what is reasonable.

‘Mr. Fulop: Very well.

‘Mr. Sadicoff: Will Your Honor make the order that the fee be paid to counsel direct?

‘The Court: Yes. How do you want the $300 a month paid, direct or through the court trustee?

‘Mr. Sadicoff: Direct, your Honor.

‘The Court: The first payment to be made forthwith. Attorney's fee to be paid forthwith with the stipulation that further attorney's fees may be fixed by the trial court, if any?

‘Mr. Sadicoff: So stipulated.

‘The Court: I haven't heard any stipulation from you.

‘Mr. Fulop: I am not stipulating to anything.

‘The Court: Very well, then it will be $7500, payable forthwith. That is all.’

During the course of hearing the testimony, after an inquiry had been directed to respondent to ascertain the items comprising $150 a month for incidentals listed in her questionnaire, the court said: ‘If he wants to waste time going into matters like that, it is perfectly all right with me, as I have nothing to do but listen to it.’

The retorts of the court as evidenced by the foregoing do not accord with the behavior of a jurist searching for the truh of a litigated controversy. A litigant is entitled to not only a fair trial but it should appear to be fair. Rosenfield v. Vosper, 45 Cal.App.2d 365, 372, 114 P.2d 29. The Court's manner should not be such as to prevent a full presentation of all the relevant evidence. Shippey v. Shippey, 58 Cal.App.2d 174, 177, 136 P.2d 86. Impatience and petulancy on the part of the trial judge do not create an atmosphere conducive of the best efforts of the participants in a trial. They stifle the advocate's confidence that he is striving before an open-minded jurist; they intimidate the lay witness; they send away the litigant with the conviction that he has been dealt with unjustly. Withal, the state of mind developed by an impatient arbiter is not he parent of a wise discretion. A request by counsel to be heard upon the legality of a proposed order aimed at divesting his client of large sums of money should be kindly heeded. It is the function of counsel to present to the court his own views of the evidence and those theories of the law that may be favorable to the cause he champions. When in a divorce proceeding the court refuses to hear argument upon the significance of a written agreement of the parties in evidence, he serves no purpose other than to irritate counsel and to convince the protesting litigant that decrees of importance are derived from the inner consciousness of the chancellor rather than from his intellecutal processes and his conscience under the influence of all of the admitted evidence.

But the court's abuse of discretion is evidenced by a still more serious vice than that of the court's impatience. Respondent filed her verified questionnaire in support of her application for the Baird order, in which she set forth an itemization of her necessities. While they totaled $593 on her ex parte affidavit, yet under cross-examination she established her monthly necessities to the extent of only $306. She made no substantial showing as to her necessary expenses for physician, dentist, insurance, or incidentals, all listed at generous monthly sums in her questionnaire. She has a separate estate consisting of liquid assets worth about $46,000 from which she receives a net income of about $95 per month. In spite of this modest income from her separate estate, she took an apartment for which she pays $115 monthly. At the age of 48 years she married appellant. At the time of the separation she was 56; he was 69. Although she alleged the existence of community property, the description of which she has no knowledge, yet she attached to her complaint a property settlement agreement which bears a date seven months prior to the filing of her suit, in which she declared (1) that she knows the nature of all property owned by her husband; (2) that all property standing in his name is his separate property and that she has no interest therein; (3) that she released all claims upon it. While this agreement was received in evidence the court declined to read it. The financial statement of appellant listed his assets at $211,498.50 and the testimony supported that value. Among the items constituting his estate are two second mortgages, which respondent insists upon appraising at their face value. But their appraisal by appellant's testimony appears reasonable and there is no proof to the contrary. The aggregate of his monthly income does not exceed $760 and it is all derived from his separate estate.

In fixing the sums to be awarded plaintiff as alimony and for counsel fees the court is to be guided by section 137, Civil Code and the interpretations thereof. Such award is to be determined in the court's discretion based upon (1) the needs of the wife and (2) the ability of the husband to pay. Legal discretion is a readily comprehended concept. It means nothing more than the application of statutes and legal principles to all of the facts of a case. Watson v. Sutro, 103 Cal. 169, 173, 37 P. 201. It is abused when exercised contrary to the spirit of the law and in a manner calculated to impede or defeat the ends of substantial justice. Bailey v. Taaffe, 29 Cal. 422, 424. Its abuse is manifested when the jurist exceeds the bounds of reason, exhibits caprice or partiality, or is arbitrary in ignoring relevant evidence or in scorning legal rules. Sharon v. Sharon, 75 Cal. 1, 48, 16 P. 345. ‘Such procedure cannot be sustained.’ Fewel v. Fewel, 23 Cal.2d 431, 433, 144 P.2d 592, 594. Section 137 was not designed to enrich the wife or her counsel out of the separate estate of the husband. It merely requires that allowances be made only for the purpose of covering the current needs of the wife pending her action and to enable her to present her case satisfactorily, and she must show the items and amounts of her needs. Tremper v. Tremper, 39 Cal.App. 62, 66, 177 P. 868. While she is not required to impair her own capital to supply such needs if she has only a modest estate, yet if she has income of her own it should be supplemented from the community estate or, for want of such estate, from the husband's separate income, only to such extent as will enable her to live as comfortably as has been her custom at the community fireside. Westphal v. Westphal, 122 Cal.App. 379, 10 P.2d 119; 1 Cal.Jur. 968, paragraph 21. In any event, evidence of her possessions as well as of her income should be proved at the hearing.

The order granted herein, if enforced, would take from the capital assets of defendant to support plaintiff in her solitary luxury. Having her own separate income to the extent of $94 monthly, an allowance for her temporary support should have been limited to an amount sufficient to enable her to obtain her necessaries in the sum of $306, pendente lite as shown by the evidence. Westphal, supra. Certainly if it was her own sober and advised opinion that $150 per month from appellant would suffice for the balance of her life, that opinion should at least have been considered by the court. Even though it might eventually be held to be unenforcible, as a contract, it would continue to be an agreement (I Williston, secs. 1 and 2), and its declarations would be evidence of a meeting of the minds of its authors with respect to its covenants and of their opinions as to the existence of the facts thereby established for themselves. Havemeyer v. Superior Court, 84 Cal. 327, 378, 24 P. 121, 10 L.R.A. 627, 18 Am.St.Rep. 192; California Cured Fruit Ass'n v. Stelling, 141 Cal. 713, 720, 75 P. 320; Offeman v. Robertson-Cole Studios Inc., 80 Cal.App. 1, 13, 251 P. 830; Clark v. United States, 95 U.S. 539, 543, 24 L.Ed. 518. Having been ordered to appear to show cause, it was appellant's right to controvert all issues presented by the order, Mudd v. Mudd, 98 Cal. 320, 33 P. 114, and to have his evidence pondered and his authorities and reasons considered, Fewel, supra. The court's refusal to do so was an abuse of discretion.

The award of $300 monthly for temporary alimony, alone, might not have warranted an appeal. But concomitant with its allowance the court ordered the payment to respondent's counsel of a very generous fee. This award of $7500 as attorney's fees cannot be justified on any theory under the facts established in this case . It is not unlikely that respondent's counsel may be able to demonstrate as the case progresses that the amount awarded is a reasonable sum for the total fee for all work to be done. The value of the services of a diligent and capable lawyer rapidly mounts with the hours invested, problems solved and results achieved.

Notwithstanding the explicit language of section 137, Civil Code, it is there implied that the amount of a lawyer's fee to be awarded in a matrimonial action is to be governed by many factors including the amount recovered, the importance of the action, the customary charges in the community for similar work, the professional standing of the attorney and his degree of ability, skill and experience. 7 C.J.S., Attorney and Client, § 191, p. 1080 et seq. However, the primary factor in deriving a determination is the importance and amount of service actually performed. Of course actual performace cannot be shown where demand is made to fix a fee for future services as must be done in divorce cases in which the plaintiff establishes her financial incompetence to go forward. Lacey v. Lacey, 108 Cal. 45, 40 P. 1056; Brockmiller v. Brockmiller, 57 Cal.App.2d 623, 135 P.2d 184; White v. White, 96 Cal.App. 765, 274 P. 990; Smith v. Superior Ct., 89 Cal.App. 177, 186, 264 P. 573. But in any event a fair understanding of the activities necessarily to be done may be had from the pleadings and from the testimony of the wife and her counsel as to the number and location of witnesses to be interviewed, of depositions to be taken and of other evidence and research required for the ultimate establishment of the allegations of the wife's complaint. From such showing the court to which the application is addressed can determine to a fairly reasonable degree the amount of work that will be required of the attorney for the complete preparation of the case for trial and can fix the fee accordingly. If in the course of his labors the attorney should find that his inquiries have led him into fields not at first contemplated he may make demand for additional compensation for work yet to be done preparatory to the trial, and upon a showing of services rendered and of those yet to be performed the court will be enabled to supplement the initial award. Such is the universal practice in general equity matters (7 C.J.S., Attorney and Client, § 193, p. 1096; Wallace v. Fiske, 8 Cir., 80 F.2d 897, 107 A.L.R. 726; Adams v. California Mut. Bldg. & Loan Ass'n, 18 Cal.2d 487, 116 P.2d 75; Carbon Steel Co. v. Slayback, 4 Cir., 31 F.2d 702; Tanner v. Superior Court, 43 Cal.App.2d 732, 111 P.2d 713), and such is the common practice in divorce actions in other states of the union. See Gould v. Gould, 61 Misc. 120, 114 N.Y.S. 331. That such practice may inconvenience counsel and congest court dockets does not outweigh the injustice that may be suffered by one whose capital might be taken from him by the occurrence of an event not foreseeable, with no adequate recompense. Unless such practice be followed every divorce proceeding becomes an occasion for potential injustice.

Any fee paid is unjust to the extent that it exceeds the value of services rendered. Counsel fees for a wife's attorney in a divorce action are not to be determined solely by the wealth of her husband. A generous fee for the conduct of a divorce case against a wealthy man is oppressive unless it be commensurate with the services to be performed. While the seriousness of the charges made by the parties and the gravity of the interests involved may enhance or diminish the obligation (Clark v. Ellsworth, 104 Iowa, 442, 73 N.W. 1023) laid upon the wife's attorney to preserve her status as wife and to maintain her in the social esteem, such factors do not justify a liberal fee in the absence of work done and results accomplished.

There was no proof of the extent of the services to be required of her counsel save respondent's declaration that ‘many difficult and complex questions of law will be involved in this case’ with respect to whether a part of the property in defendant's possession is community and whether new rights and obligations arose under the property settlement agreement. Such declaration is not sufficient support for the order. Hoorman v. Climax Cycle Co., 9 App.Div. 579, 41 N.Y.S. 710. She was not qualified to testify upon such matters.

The only service for which an award could have been made was that to be performed in the future. The court has no jurisdiction to order payment for services rendered prior to the order. If none should ever be rendered, the award of a fee in any sum would have been excessive. Should either of the parties to this action decease at any time after payment of the $7500 and prior to any service in the preparation of the case for trial, the payment would be a total loss to appellant. The same would likewise be true should plaintiff's counsel immediately pass on to his final reward. Furthermore, should he conclude that, under the evidence developed within a day, he could not establish appellant's desertion or defeat the charges of his client's cruelties, he would then act most advantageously in effecting a settlement. Surely he would not, in that event, claim that he had earned $7500. Such a sum is seldom if ever justified in a divorce case where the husband's total estate is worth only $211,000 and the facts are no more complicated than those here involved. The issues here are neither novel nor complex. The questions projected are commonplace to an experienced attorney. Every rule of law and every principle of equity suggested by the pleadings have been repeatedly clarified by the appellant courts. In the absence of proof that extraordinary demands will be made upon respondent's counsel, it was an abuse of discretion for the court thus to exercise its ‘vicarious generosity’ (Chief Justice Taft in In re Gilbert, 276 U.S. 296, 48 S.Ct. 309, 72 L.Ed. 580) in ordering the payment by defendant of a sum not warranted by the evidence presented at the hearing in limine.

In view of the covenants, property settlement agreement and the facts there declared and of the properties listed by appellant as constituting the assets of his separate estate, it is our opinion that the reasonable value of counsel's services, reasonably certain to be required of him in the preparation of this case for trial, is $2,500. The order should have required the immediate payment of that sum. Also, it should have authorized counsel to make applications for additional fees in the event that he is able to show at any time during the course of his labors preliminary to trial that his services already rendered exceed, or equal, in value the amount of the initial award. Whether such additional fees are requested during his work of preparing the case for trial, at or after the time of moving to set the case for trial, he may ask the court to order the payment of fees for the trial of the action and the preparation and settlement of findings and judgment.

The Mosk Order.

The hearing on the Mosk order was of brief duration. No showing was made that any unusual genius or skill would be required of respondent's counsel. The only performance required and the only act done was to write a reply brief on the appeal from the Baird order. The court may have contemplated an oral argument by respondent's counsel. None was made, but if such argument had been made it could have added nothing to the contents of the brief he had filed. That document is an excellent treatment of the subject but there is utterly no basis for an award of $2500 for its preparation. Neither the nature of the questions discussed nor the importance of the order on appeal warranted a charge in excess of $750. Also, the allowance of $250 court costs for that appeal was in excess of the sum reasonably to be incurred. The brief consists of 58 pages including its cover, topical index and table of authorities. Even though its printing cost had been excessive, the amount recoverable as costs for the printing of a brief being limited to $100.00, Sec. 1034, Code Civ.Proc., suggests an amount for this allowance.

In the Bancroft case (9 Cal.App.2d 464, 50 P.2d 465) after appeal from the order for the payment of $500 an amount of trial costs and $3500 on account of attorney's fees, on the hearing of a second order to show cause to fix costs on appeal and fees for the wife's attorney to resist the appeal from the first order, the court allowed $200 costs and $1750 attorney's fees on appeal from the first order. Holding that such sums were disproportionate to the costs incurred and the services rendered on appeal, the appellate court reduced the amounts of the order to the actual costs on appeal and the attorney's fees to $750. This fixes a fair criterion for our guidance in holding that the Mosk order was the result of abuse of discretion.

It is therefore ordered that the Baird order be amended as follows: (a) In paragraph ‘I’ substitute the figures ‘$225.00’ in lieu of the words and figures ‘Three hundred ($300)’ wherever they occur; (b) instead of paragraph ‘II’ substitute the following: That defendant Samuel Shopiro pay forthwith to Harry G. Sadicoff, Esq., the sum of $2500 on account of attorneys fees for his services to be rendered on behalf of plaintiff to and including his appearance for the setting of the case for trial. Thereafter the court will upon motion make such other orders as may be deemed equitable and appropriate.

It is further ordered that the Mosk order be modified by substituting the figures ‘$100’ in the place of the words and figures, ‘Two Hundred and Fifty Dollars ($250.00),’ and the figures ‘$750’ in lieu of the words and figures ‘Twenty-five hundred dollars ($2500).’

As thus modified both of said orders are affirmed.

I concur in the conclusions of the foregoing opinion and in the modification of the Mosk order, but I think that the Baird order should be so amended as to fix a specified fee for all legal services to and including the entry of judgment. Section 137 of the Civil Code, which authorizes an allowance of counsel fees, provides that the court may require the husband to pay any money necessary ‘to prosecute or defend the action.’ There is no provision in the section for two orders to be made, one to cover fees for the preparation for the trial and another for the work of counsel during the trial, and there is no occasion for a requirement that two applications be made for counsel fees in all cases that go to trial. Of course, counsel can at any time before the final conclusion of the trial ask for an additional allowance if circumstances be shown establishing that work is to be done which was unknown and could not reasonably have been contemplated at the time of the making of the original order. Rose v. Rose, 109 Cal. 544, 42 P. 452.

MOORE, Presiding Justice.

McCOMB, J., concurs.