WARNER v. WARNER (1949)

The only question on this appeal is whether the trial court abused its discretion in granting counsel for plaintiff $10,000 counsel fees pendente lite.

In her complaint for separate maintenance the plaintiff wife alleges cruelty and grievous mental suffering. The usual order to show cause issued, and hearing followed, for the purpose of fixing temporary alimony, court costs, and counsel fees.

The plaintiff testified to declarations of the defendant which would support the inference that he was financially worth more than a million dollars. She also testified that she had no money or property of her own; that the defendant told her she would never get anything from him if she sued for divorce; and that he took her automobile away.

The defendant testified that while he owned interests in holding and family corporations, his wealth was nominal; that most of his property was in the estate of his father, undistributed in probate, and subject to extensive inheritance taxes; and that he had very meager present liquid assets. He also testified that the reason the automobile was taken from the wife was because it belonged to one of the corporations which held title to the car.

The parties were married for two and a half years before filing of the complaint. There are no children of the marriage. The defendant pays alimony to a former wife and support money for a child of that marriage.

The court ordered the defendant to pay $500 a month for temporary support for the wife, and to permit her to occupy the family dwelling house (which has twenty-two rooms), and to pay $10,000 attorney's fees, on account, payable in four monthly installments, and costs of $250.00.

It was stipulated that upon the trial of the case on the merits the balance, if any, of counsel fees might be fixed.

During the pendency of an action for divorce or for separate maintenance, the court may, in its discretion, require either party to pay as costs of action or as attorney's fees any money necessary for the prosecution of the action by the other party, Civ.Code, sec. 137; Loeb v. Loeb, 84 Cal.App.2d 141, 190 P.2d 246, taking into consideration all the facts and circumstances of the case involved. 1 Cal.Jur., sec. 48, p. 995; Peyre v. Peyre, 79 Cal. 336, 21 P. 838.

While it appears in this case that there may well be considerable legal work to determine just what the actual worth of the defendant is—to unscramble and determine his interest in various holding companies—and while the conduct of the defendant in denying the plaintiff the use of an automobile, and in telling her she would never get anything from him if she sued him for divorce, is unfortunate; nevertheless it is the opinion of this court that the amount of the fee ordered for legal services pending the trial was an abuse of discretion.

In a sense such a fee is in the nature of a retainer. If death or serious injury should happen to counsel involved, the defendant may be called upon to pay additional fees for preparation of plaintiff's case. There is the possibility of a reconciliation between the spouses. This frequently happens, and the law is always hopeful that it may come to pass. In the event of an early reconciliation, obviously the fee named would be too much. Then, too, there is the possibility of death of one of the parties. Fees for legal services can be fixed by the trial court which finally hears the case with better regard for the rights of all parties concerned.

In the case of Shopiro v. Shopiro, Cal.App., 153 P.2d 62, 67, 68, the amount of counsel fees pendente lite in an action for separate maintenance was given careful consideration by the District Court of Appeal. The amount ordered was $7,500. After the decision in the District Court, the Supreme Court granted a hearing, and thereafter the matter was settled and the appeal dismissed. In that case the court observed:

‘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.

‘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 appellate 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. [294], 296, 48 S.Ct. 309, 72 L.Ed. 580). * * *'

The order is affirmed, and modified fixing the counsel fees pendente lite at $2,500.00.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.