JEFFERSON (Bernard), J. I dissent.
The majority decision in this case elevates form over substance in holding that petitioner Gloria Berlin’s objection to the court’s order for attorney’s fees of $10,000 to her own counsel and $10,000 to her husband’s counsel was predicated below solely on the theory that the amounts awarded were excessive and, therefore, that she has little standing to raise an objection here that she was misled into giving a. consent to a stipulation by the trial court’s erroneous statements as to the law, and that she was misled by the trial court’s statement as to the amount of attorney fees he was intending to fix.
A review of the record in the case at bench indicates clearly that petitioner Gloria did not give an understanding or knowledgeable consent to the award of fees made by the trial judge, and that she was misled into finally consenting to the stipulation proposed by her attorney and the attorney for her husband. The record indicates that, over and over, when the trial judge sought to determine whether petitioner understood the stipulation, agreed to by counsel for the parties, and was agreeable to its terms, petitioner raised repeated objections to the proposal as to attorney’s fees on the ground that she had paid her own attorney a substantial sum, and did not know what services were being claimed by her attorney and what the amount of the fee would be.
It is obvious in this case that the request that attorney’s fees be treated as a community obligation and be made payable from community assets, was a request being made by the respective attorneys, and not by the respective parties. In seeking to obtain the consent of the parties, the trial judge prefaced his remarks to the parties by stating that he had met with counsel in chambers several times with respect to the various issues involved in the case, and stated that one of the issues was “in particular [556]the question of the treatment of the requests for attorney’s fees as a community obligation. Under the law reasonable attorney’s fees are treated as a community obligation in a domestic relations matter.”
This latter statement is not a correct statement of the law since it assumes that the parties to a domestic rélations case are in agreement that attorney’s fees are to be awarded to the attorneys for both parties and are to be considered and treated as a nondisputed community debt. Thus, in In re Marriage of Jafeman (1972) 29 Cal.App.3d 244 [105 Cal.Rptr. 483], the court points out that in Wong v. Superior Court (1966) 246 Cal.App.2d 541 [54 Cal.Rptr. 782], it was recognized that the parties may agree that their liability to their respective attorneys shall be treated as a community debt and, if there is such agreement, a party’s obligation to his own attorney for fees then becomes a community debt “which is not in dispute.” (In re Marriage of Jafeman, supra, 29 Cal.App.3d 244, at p. 267.)
But neither Wong nor Jafeman can be interpreted as holding that a disputed obligation of attorney’s fees between a party and his own attorney is to be treated as a community debt.
In view of this incorrect statement of the law by the trial court with respect to a disputed obligation between a party and his attorney for attorney’s fees being automatically treated as a community obligation, there is little doubt that petitioner Gloria was misled into agreeing to the stipulation which, in effect, would result in a judgment against her in favor of her own attorney for the latter’s attorney’s fees, which would permit him to levy execution upon her property.
The trial judge then stated, in pointing out to the parties what he had discussed in chambers with counsel, that “[t]he sum of $10,000 for counsel fees was proposed as a reasonable figure, and the court did indicate to counsel that it felt that in view of what appeared to be the dimensions of the case and the amount of time and effort and skill that was required in its resolution, that that appeared to be a reasonable figúre.” Petitioner Gloria contends, not unreasonably, that it was her impression that the trial judge meant by his latter statement that $10,000 would constitute the total counsel fees for both attorneys.
At another point in the colloquy between the trial judge and petitioner Gloria regarding the explanation or statements being given by the trial court, petitioner Gloria stated: “Well, I don’t understand how the court [557]will determine their fees. I had a contract with Mr. Johnson to pay him six—” and petitioner’s counsel interrupted with the statement: “He said with the exception of that.” The petitioner then stated: “With the exception of that. That’s the only thing I don’t understand.” The trial judge then stated that, “[n]ow in every domestic relations action where counsel have to be compensated, the matter is handled in one of two ways: Either the parties and their lawyers agree on the amount, or it becomes a litigated issue, which is awarded—and an award is made by the court. I’m not sure that I know of any other way in which to resolve the matter.” (Italics added.)
Here, again, the trial-judge is telling the petitioner that, in a domestic relations proceeding, if a party does not agree with her own lawyer as to the amount of his fee, the trial judge has the right to set the fee which she is required to pay her lawyer, as a litigated matter in that proceeding, and that the fee, so determined by the trial judge, will become a judgment against her in favor of her own attorney.
This case, therefore, is not unlike Wong, supra, relied on by the majority in its opinion. But my view of what Wong holds is entirely different from the majority’s view of the Wong holding as stated in the majority’s opinion herein.
In Wong, the plaintiff’s attorney in a divorce action claimed an amount which he contended to be the reasonable value of his fees and requested that the amount be allowed by the -court as a proper charge against the community. However, before the attorney’s fees could be set forth in the interlocutory judgment, plaintiff discharged his attorney and moved to set aside the submission on the issue of attorney’s fees. That motion was denied and, in the ensuing interlocutory judgment, an amount for attorney’s fees in favor of plaintiff’s attorney, was listed as a community debt to be paid from community assets.
The Wong court held that, in the absence of the plaintiff’s consent, the court was without jurisdiction to establish, as a part of the interlocutory judgment of divorce, a judgment for attorney’s fees against the plaintiff and in favor of his discharged attorney. The court, at pages 545-546, quoted from Meadow v. Superior Court, 59 Cal.2d 610, 616 [30 Cal.Rptr. 824, 381 P.2d 648] as follows: “And ‘it is only the party who has the right to apply for an award of attorney’s fees and section 137.3 and 137.5 [of the Civil Code] do not give the attorney for a party, either before or after any discharge of his services by his client, the right to make a motion in [558]his own behalf for an award of such fees . . . and the trial court is without jurisdiction to . . . proceed with such motion or to make any award thereunder.’ (Marshank v. Superior Court (1960), supra, pp. 607-608 [9, 10].)” (Italics added.)1
In Wong, although the defendant wife did not make any objection with respect to the attorney’s fees being requested by the plaintiff husband’s attorney as being unreasonable or an improper charge against the community estate, the husband, as plaintiff, did raise an objection. The Wong court pointed out that, a divorce action is a controversy between the parties to the divorce action, and that, in such an action, the court lacks jurisdiction to determine a controversy over fees between one of the parties and that party’s attorney. Thus, the court remarked that “the divorce action was not the place to determine the amount which Norman Wong [the plaintiff) should be ordered to pay to his attorney.” (Wong, supra, 246 Cal.App.2d 541, at p. 549.)
The Wong court also held that the interlocutory judgment, in ordering plaintiff, Norman Wong, to pay attorney’s fees to his own attorney, deprived such party of his property without due process of law. The court specifically stated that “[s]uch an order cannot be equated with a direction to pay opposing counsel or to pay an acknowledged family creditor.” (Wong, supra, 246 Cal.App.2d 541, at p. 548.) (Italics added.)
Wong was decided before the enactment of the Family Law Act. But this act has not changed the legal principles stated in Wong. Thus, in In re Marriage of Jafeman, supra, also relied upon by the majority herein, the question arose as to the jurisdiction of the court to award attorney’s fees following enactment of the Family Law Act. The sections of the Family Law Act relating to attorney’s fees are found in Civil Code sections 4370 and 4371. Jafeman points out that “[s]ection 15 of the Statutes of 1970, chapter 311, page 706, referring to section 4370, provides, ‘This act does not constitute a change in, but is declaratory of, the existing law.’ ” (Jafeman, supra, 29 Cal.App.3d 244, at p. 263.)
In discussing the question of the liability of a spouse for that spouse’s own attorney’s fees, the Jafeman court indicates that such a liability may be considered in relation to the division of the community property [559]under appropriate circumstances. The Jafeman court refers to the Wong case and interprets Wong by stating that, there, “it was recognized that the parties, by proper amendment of their pleadings, may request that their liability to their respective attorneys be treated as a community debt. In such a situation it is proper for the court to consider this obligation, just as it would any other community debt which is not in dispute, in determining the amount of community property which is available for distribution.” (Jafeman, supra, 29 Cal.App.3d 244, at pp. 266-267.) (Italics added.)
Jafeman, therefore, which was decided after the enactment of the Family Law Act, reiterates the view of Wong that, in order for a party-spouse’s liability to that party-spouse’s own attorney to become a judgment against such party-spouse in favor of the spouse’s own attorney, there must be a consent and agreement by the parties that such an obligation is to be deemed a community debt “which is not in dispute.”
In the case at bench, it is unreasonable, unrealistic and unsound to hold that petitioner Gloria agreed and consented for the trial judge to determine the amount of attorney’s fees which she owed to her own attorney and to consider such amount a “nondisputed” obligation to become a part of the interlocutory judgment as a judgment against her and in favor of her own attorney.
In the case at bench, the explanations made by the trial judge to petitioner Gloria, and the colloquy between him and petitioner, leave no doubt that petitioner was not giving any meaningful or knowledgeable consent to jurisdiction by the trial judge to award a $10,000 fee to her attorney and a $10,000 fee to her husband’s attorney as judgments against the community assets.
The trial judge in the case at bench had the same mistaken notion of his jurisdiction to award attorney’s fees in favor of an attorney and against his own party-client as did the trial judge in Wong, whether such party consented or not, and even though there was a dispute between such party and that party’s attorney as to the fees. This situation is not to be confused with the jurisdiction of the trial court to award one party attorney fees as against the adverse party.
As pointed out in Wong and Jafeman, if, in the case at bench, there had been a meaningful consent by petitioner Gloria to her liability to her [560]own attorney for fees as a community debt, the trial judge’s award obviously would have been proper. But in view of the trial judge’s stated views that a party’s liability for fees to that party’s own attorney is considered as a community obligation under the law ánd that the court is entitled to make the award either by consent or by the issue being litigated in the domestic relations action itself, the final consent to the stipulation, given by petitioner Gloria, should not be considered other than an invalid consent, based upon, and the product of, erroneous views of the law stated by the trial judge, and of an obvious misunderstanding by petitioner.
At the time of the colloquy between the trial judge and petitioner Gloria in the instant case, petitioner was without representation by counsel as was the plaintiff in the Wong case. In the case at bench, petitioner’s attorney was an adverse party to petitioner in the matter of the issue of his fees. Petitioner, therefore, was not represented by counsel in this contest with her own attorney, with the result that she was being deprived of her property without due process of law.
In this situation, I see little support for the majority’s view that petitioner has waived consideration of this issue on this appeal.
Therefore, I would reverse that portion of the judgment appealed from by petitioner.
A petition for a rehearing was denied February 5, 1976. Jefferson, J., was of the opinion that the petition should be granted. Appellants’ petition for a hearing by the Supreme Court was denied March 18, 1976.
It is to be noted that under present Civil Code sections 4370 and 4371, an order for attorney’s fees may be made payable directly to a party’s attorney. But these sections do not confer upon an attorney any independent right or cause of action for fees. (See In re Marriage of Borson (1974) 37 Cal.App.3d 632, 638, fn. 5 [112 Cal.Rptr. 432].)