Lisi v. Vogel

California Court of Appeal Oct 26, 1995 No. No. B086709Published

Before: Armstrong

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Holding. The court held that because the right to attorney fees for court-appointed counsel for children was adjudicated prior to a party's death, the court retained jurisdiction to fix the amount and allocate those fees post-death as the enforcement of a vested property right.

Issues

Did the trial court err in exercising jurisdiction to award attorney fees in a dissolution action after the death of one of the parties?

Disposition. affirmed

Quotations verified verbatim against the opinion

“the death of one of the parties does not prevent the courts from taking action to enforce the rights adjudicated prior to the death of one of the parties.”

“Even though the fee had not yet been fixed, the right to the fee had been established and the calculation of the amount of the fee by the court after Mr. Lisi’s death was the enforcement of a vested property right”

[1575]Opinion

ARMSTRONG, J. On November 4, 1992, Kenneth Lisi filed a petition to dissolve his marriage to Pamela Lisi. A bitter battle developed over the custody of the parties’ two minor children. Pursuant to Family Code section 3150, which authorizes the court to appoint private counsel to represent the interests of children in a custody proceeding, the court appointed respondent Pearl Franklin Vogel to represent the two children. Ms. Vogel retained Honey Kessler Amado to assist in the representation of the children.

On October 22, 1993, the court relieved Ms. Vogel as counsel for the children pursuant to stipulation and without prejudice, subject to reappointment on motion of one of the parties prior to time of trial. The court further ordered that “reasonable attorney’s fees for Ms. Vogel will be determined at time of trial. Such fees will be paid out of the proceeds of the sale of the family residence subject to allocation of her attorney’s fees as to each parties’ [sz'c] share.”

On October 31, 1993, Mrs. Lisi’s mother shot Kenneth to death. A judgment of dissolution had not been entered. Thereafter, on March 29, 1994, Ms. Vogel sought an order fixing the amount of her fees and apportioning the obligation between the community or the parties. Mrs. Lisi opposed the motion, contending that Mr. Lisi’s death abated the action and deprived the court of jurisdiction to make the requested order. She also contested reasonableness of the fees requested. On July 22, 1994, the court awarded attorney fees in the amount of $27,205 to Ms. Vogel and $3,500 to Ms. Amado. The order required the fees to be equally shared by Mrs. Lisi and the estate of Kenneth Lisi.1 Mrs. Lisi appeals the order, stating in her opening brief that the appeal presents a single issue: “Did the court in the dissolution action err in exercising jurisdiction to award fees subsequent to the death of Mr. Lisi?” The estate of Kenneth Lisi has not appealed.

As between the parties to a dissolution action, the death of one party before entry of an order dissolving the marriage abates the action. Following death of a party, the court is deprived of jurisdiction to make further orders concerning property rights, spousal support, costs or attorney fees. (In re Marriage of Allen (1992) 8 Cal.App.4th 1225 [10 Cal.Rptr.2d 916]; Kinsler v. Superior Court (1981) 121 Cal.App.3d 808 [175 Cal.Rptr. 564]; In re Marriage of Williams (1980) 101 Cal.App.3d 507 [161 Cal.Rptr. 808]; In re Marriage of Shayman (1973) 35 Cal.App.3d 648 [111 Cal.Rptr. 11]; Bevelle v. Bank of America (1947) 80 Cal.App.2d 333 [181 P.2d 730].) The court

Lisi v. Vogel

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