Frank v. Frank

SHOEMAKER, J.

Defendant appeals from that portion of an interlocutory decree of divorce ordering him to pay plaintiff’s attorney’s fees. Defendant’s sole contention is that the court erred in fixing the amount of these fees without requiring any showing of the specific services performed by plaintiff’s attorney and without permitting defendant to cross-examine plaintiff’s attorney or to produce other evidence as to the amount of work actually performed by him.

The action came on for trial at 11 a.m. on October 17, 1961. Prior to the giving of any testimony, court and counsel retired to chambers for a discussion which lasted until the noon recess. When court reconvened at 2 p.m., counsel for both parties informed the court that they had reached an agreement during the noon hour as to alimony, child custody and support, and the manner in which the property should be distributed. After the plaintiff and her corroborating witness had testified briefly, counsel for plaintiff stated that the sole matter remaining was his request for attorney’s fees. He then informed the court that he had already received $2,500 on account, and that he considered an additional sum of $17,500 would constitute adequate compensation for his services. He stated that the parties owned an extensive amount of community property; that he had worked on the ease constantly since May 1,1961; that there had been numerous tax problems in connection with the property settlement agreement, and also numerous conferences with his client and with opposing counsel. In addition, he had appeared at the hearing for pendente lite orders, two pretrial conferences, and the trial itself. He estimated that he had spent “several hundred hours” working on the ease.

Counsel for defendant then examined plaintiff’s counsel under Code of Civil Procedure, section 2055, and established that the “actual equity” of the parties’ community property was somewhere between $475,000 and $480,000, and that the time he had spent with his client was somewhere above three hundred hours. He stated that he did not always keep records and was unable to be more exact.

The trial judge then invited counsel to confer with him in chambers. Following a brief recess for this purpose, the trial

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judge announced that he did not intend to permit a long and detailed examination concerning the minutes and hours which plaintiff’s counsel had devoted to telephone calls and other matters connected with the ease; that he had sufficient experience in cases of this nature to determine what would constitute a reasonable fee and that, in any event, he had already acquired sufficient evidence by virtue of the file on this particular ease. When defendant’s counsel inquired whether he was precluded from calling either plaintiff or her counsel as a witness, the court replied that he was. The court then took the matter under submission. Pursuant to the interlocutory decree, attorney’s fees for plaintiff’s counsel, inclusive oE the amounts already paid him, were set at $12,500.