Morrison v. Federico , 120 Utah 75 ( 1951 )

LATIMER, Justice.

' This is an. appeal from a judgment in favor of plaintiff in an action brought by him to recover fees for legal services rendered on behalf of defendant, Jean Hardin Federico. The defendants are husband and wife. The services involved a habeas corpus proceeding instituted against the husband and the paternal grandparents to recover custody of the minor child of the parties; and, services performed in a divorce proceedings started by the husband against the wife. The parties are referred to herein as théy appeared in the court below.

On June 4, 1949, after prior arrangement, Jean Hardin Federico went to the office of plaintiff at about 6:30 p. m., where she consulted with him regarding difficulties existing between herself and her husband. She represented to plaintiff that she and her husband lived with his father and mother; that earlier that day she had been evicted from the home by her husband; that he and his parents had refused to permit her to have or care for her child, who was then sixteen months old; that she sought the services of an officer of the law who went with her to get the child but when a tussle for the child between the grandmother and the mother ensued he turned the child over to the grandmother because of the assertion that the court had awarded custody to the father; and that her husband claimed he had a court order granting him sole custody of the child. A complaint for divorce had been filed by her husband on May 9, 1949, but she had never been served with summons and was unfamiliar with the charges made or the relief requested. She told plaintiff that she had been informed of the divorce action, but thought that it had been withdrawn because no papers had been served upon her and she had been informed by her husband that he was dismissing the action. She said that she wanted to obtain immediate custody of her child because of his age and illness and asked plaintiff to represent her. Accordingly; plaintiff prepared a petition for a writ of habeas corpus, which she signed. After finding that the judge for the First Judicial District was not available, she and plaintiff drove to Ogden that evening, arriving about 10 o’clock p. m. One of the judges of the Second Judicial District Court issued the writ, returnable Monday, June 6,1949. On Sunday, plaintiff interviewed witnesses and made preparations for the hearing. On Monday, he again drove to Ogden, accompanied by Mrs. Federico and two witnesses who were to appear at the hearing. The husband contested the writ, a hearing was held on the petition, and an order was issued granting Mrs. Federico the custody of the child. She then took the child to Weston, Idaho, where she stayed with her sister-in-law.

Plaintiff had obtained a copy of the divorce complaint filed against Mrs. Federico and went over the allegations with her. She advised him that the charges contained therein were false, requested that he represent her in the divorce action and told him to accept service of the summons for her. On Tuesday, June 7th, plaintiff accepted service of summons in the divorce action, prepared a petition for an order, to show cause for temporary alimony, support money and attorneys fees, and prepared an affidavit of impecuniosity. On Thursday, June 9, 1949, he took the papers to Weston, Idaho, which is some thirty miles from Logan, Utah for Mrs. Federico’s signature. When he arrived, she informed him that she and her husband had decided upon a reconciliation. She stated that her husband had told her he would have the divorce action dismissed and she requested that plaintiff ascertain whether or not that had been done, and, if it were not done by Saturday, to return with the papers and she would sign them. Plaintiff checked with the County Clerk’s office and was informed that up until noon the following Saturday no motion for dismissal had been filed. Pursuant to the previous arrangement, plaintiff on Sunday proceeded to Weston and the documents were then signed by Mrs. Federico. Plaintiff assured her that he would again check to see if the divorce action had been dismissed, and if such were the case, he would not file the documents signed by her. On Monday, plaintiff learned that a motion to dismiss the divorce action had been filed, and in accordance with his client’s instructions, he did not file the legal papers.

On Monday, June 13, 1949, Mrs. Federico informed plaintiff she would come to his office that morning to sign a stipulation for the release of the writ of habeas corpus, but she failed to appear. Apparently, with the assistance of her husband and his attorney she attempted to bypass her own counselor. During the afternoon of that day plaintiff received a telephone call from the Judge who had issued the writ advising that defendants were in Ogden, accompanied by Frank Federico’s attorney, and that the attorney was purporting to represent both parties in having the writ set aside. Subsequently, with plaintiff’s approval an order was issued accomplishing the dismissal. •

In due course of time, plaintiff requested payment for the services performed by him, and upon defendants’ refusal to pay, instituted this action in the City Court of Logan, Utah. A judgment was rendered in his favor and defendants appealed to the District Court. The District Court ruled in plaintiff’s favor and this appeal followed.

On this appeal, defendants advance several contentions, most of them without merit. Those of any importance can be resolved by a determination of three issues, namely, whether the cost of the services performed by plaintiff constitutes a family expense within the meaning of Section 40-2-9, U. C. A. 1943; whether a family unit existed at the time the obligation was incurred; and whether the amount awarded was reasonable.

The district court found that all of the services performed were reasonably necessary and payment thereof was charge.able against both husband and wife for the reason that they were of benefit to the family unit. In his findings he allocated the value of the services in the two suits in the following proportions: $50 for the services in the divorce action, and $250 for the services in the habeas corpus proceedings. For reasons hereinafter discussed, we approve the latter amount as a charge against both defendants, but assess the $50 charge only against the wife.

The general rule on a third party suit against the husband is set forth in 17 Am. Jur., paragraph 578, in the following language:

“If the wife discontinues her suit for divorce, even though she has a valid cause of action, and such discontinuance is without her attorney’s consent, the latter cannot recover from her husband on an implied assumpsit for counsel fees incurred by her prior thereto. The attorney must look for his compensation to the wife alone, who of course continues to be liable therefor. This rule is based not only on the fact that counsel fees can generally be awarded only on application in the principal suit, but also upon reasons of public policy. To hold otherwise would be to say that, after an estranged husband and wife have become reconciled to each other and settled all their domestic difficulties, a third party may put the merits of their former family strife in issue and ask a Jury to say the wife was entitled to a divorce which was never granted. Such a proceeding is against the policy of the law and ought not to be tolerated.”

Under Section 40-8-3, U. G. A. 1943, and previous cases decided by this court, the award of attorneys fees in divorce actions is discretionary with the judge who tries the suit. In most instances, wives are granted some financial assistance to carry on the litigation but this does not always follow. Even when an award is made, the attorney does not acquire a vested interest in the judgment. A fortiori, he could have no interest when the court which has jurisdiction has not ordered the defendant to pay. It might be that the court would refuse to assess attorneys fees against the defendant because of the financial conditions of the parties or for other valid reasons. In this case, we can neither assume that Mrs. Federico would have prevailed nor that she would have obtained a judgment for attorneys fees. This court, in the case of Openshaw v. Openshaw, 80 Utah 9, 12 P. 2d 364, held that the order must run to the litigants and not to the attorney so that the law contemplates any allowance made to the wife is for her benefit and she is charged with paying her counsel. Any right an attorney might have to participate in a sum awarded could not possibly arise until the award had been made and any relief he might be entitled to would be against his client. Cases reflecting this principle are annotated in 25 A. L. R. 354, and 42 A. L. R. 315. Accordingly, the award of $50 cannot be sustained on the theory that because the court might have made an award in the divorce action the attorney may hold the husband liable in an independent proceeding.

The next question is whether the attorneys fees in a divorce action can be considered as expenses of the family within the meaning of our statute. Section 40-2-9, U. C. A. 1943, provides as follows:

“The expenses of the family and the education of the children are chargeable upon the property of both husband and wife or of either of them, and in relation thereto they may be sued jointly and separately.”

A divorce action is primarily a controversy between the hüsband and wife as to who is at fault in causing their domestic difficulties. Rather than being an attempt to promote the family unit, it is an attempt to disrupt it. The action usually involves a determination of property rights between the litigants in which each seeks to prevail over the other. It is an adversary proceeding which involves expense but not such as would be contemplated by the legislature as a family expense. To so interpret the section would permit either the husband or the wife to recover attorney’s fees from the other in all cases. The statute quoted above places the liability upon both parties only in those cases where the expenses incurred are necessary for the family benefit. Embraced within its meaning are those expenditures which are proper to support the family and necessary to promote the well-being and best interests of its members. Even though the custody of children might be incidentally involved, that issue does not necessarily transform the action from one for the party’s benefit into one which furthers the family’s interest. It appears clear that attorney’s fees for legal services performed in a contemplated divorce action are not expenses of the family.

The principles which govern our decision on the matter of fees in the divorce action are not present in the award of $250 for the services performed by plaintiff in the habeas corpus proceedings and the trial court’s conclusion that the cost of the latter constitutes a family expense within the meaning of Section 40-2-9, U. C. A. 1943, supra, is sustained.

The habeas corpus proceeding directly involved the interest and welfare of the minor child of the parties. The action was not instituted to obtain pecuniary benefits for the mother, to settle domestic grievances between husband and wife, nor to sever the family ties. It was an attempt to benefit and assist the child by returning him to the care of his mother. At the time plaintiff’s services were obtained, the grandmother had forcibly prevented the mother from gaining possession of the infant, and the husband and his parents had placed her in such a situation that it was impossible for her to administer to the wants and needs of the child. At that time, the boy was only sixteen months old, and during the larger portion of his lifetime he had suffered an affliction which necessitated careful and constant treatment. Our law presumes that the natural mother of a child of such tender years can best care for, and attend to, the needs and wants of an infant. Unless it appears to the contrary, his best interest requires the love and attention of his mother, and if it is necessary to institute legal proceedings to make it possible for the infant to have the protective care and attention of a natural mother then the family unit is being benefited. In a sense, the expenses necessary to give a child the care of its mother can be likened to the expense necessary to give it proper medical care. The fact that the father, at the moment, may have assisted other parties in keeping the child from its mother does not take the expenses out from under the provisions of the statute. If it can be reasonably concluded that the legal services were necessary to place the child back with his mother and thus further the interest and welfare of the child it matters not that the father protests. The expenses incurred constitute a family expense within the meaning of the statute when the services substantially benefit the unit and are necessary for its preservation. In this case the services performed accomplished that result.

Defendants further contend that since they were separated at the time the expenses were incurred there was no family unit, and therefore, the expenses cannot be considered within the meaning of Section 40-2-9, U. C. A. 1943, supra. In support of this contention, they cite the case of Berow v. Shields, 48 Utah 270, 159 P. 538. That case, however, is clearly distinguishable from the case at bar. There, the indebtedness was incurred by the wife after the divorce had been granted to the husband, and there was no question but that the family unit had been permanently dissolved. The distinction is clearly demonstrated by the following quotation from that case at page 276, 48 Utah, at page 539 of 159 P.:

“By what we have said, or from the quotations we have just made, we do not mean to hold that the statute would not apply in a case where the husband and wife were merely temporarily living apart and where the family relation had not in fact been severed. That the statute may still apply in such a case is well illustrated by the Sufreme Court of Washington in the case of Russell v. Graumann, 40 Wash. 667, 82 P. 998, 5 Ann. Cas. 880. In the case at bar, however, the facts are very clear that the family relation had been intentionally and permanently severed at the time the goods in question were purchased by the former wife of the defendant F. A. Shields. Indeed, all the items except the first one were purchased after the husband had obtained a divorce from the wife for her fault. * * * But, by referring to the first item, even that was purchased after the defendants had permanently ceased to live together as husband and wife in the family relation. Be that as it may, however, the evidence shows that that item was fully paid by Mrs. Shields long before this action was commenced.”

In the instant case, because of our decision on the matter of the fees for services in the divorce action, we need only consider the question of whether or not a family unit existed at the time the expenses for services in the habeas corpus proceedings were incurred. The husband, on May 9th, had filed an action for divorce. At that time his wife was visiting in California and he had supplied the funds for her journey there. A summons was mailed to California, but was not served upon her because she had returned to Utah. After her return she resumed living with her husband in the home of his parents. They associated and fraternized with each other and the trial court could have concluded that they cohabitated as husband and wife. It may be that one of them was temporarily isolated upstairs or downstairs for short periods of time, but their relationship during this period merely indicates the existence of family bickering and quarreling which had existed during their married life. The time during which the divorce action was being considered was very short and the marital relationship, if renounced, was soon restored. Though the divorce complaint remained on file, the husband made no effort to have the papers served upon the wife and even though service of summons was. later accepted reconciliation was then contemplated. All of the services for which defendants are held to be jointly responsible under the statute were performed prior to the time the wife was served with the divorce complaint. When the wife first consulted with plaintiff on June 4th, she told him she knew about the divorce action, but that her husband had told her he was going to have it dismissed. A few days prior to June 4th, the defendants had considered and had discussed the possible dismissal of the action. Even though trouble again broke out between them, it turned out to be another temporary squabble which was ended by another reconciliation. The conduct of the parties indicates a turbulent relationship, but one which was not completely severed. The evidence clearly establishes that each separation was temporary rather than permanent, and that the family unit was in existence at the time the expenses were incurred. We, therefore, hold against defendants’ contention that a family entity did not exist at. the time the expenses were incurred.

The last question for consideration is whether the amounts awarded by the court were reasonable for the services performed. Plaintiff acted promptly and properly in his efforts to protect and defend the interests of his client. He prepared the necessary papers at inconvenient times. He appeared before the judge in Ogden, Utah, to obtain the writ and subsequently represented the wife in the contested hearing. He worked on a Sunday to contact the witnesses, to gather up the evidence necessary to properly present the issues and prepared himself to argue the law applicable to the facts, all of which resulted in a favorable decision for his client. He made at least two trips to Weston, Idaho, which is located about 30 miles from Logan, and drove to Ogden and back, a distance. of some 90 miles, on two different occasions to participate in the habeas corpus proceedings. An experienced attorney, who had practiced in the same locality for a number of years, testified as to the amount considered reasonable for attorneys’ fees in such instances, and the court’s award is well within the limits of his evidence. Defendants did not present evidence to contradict the amount suggested by the witness. The award must, therefore, be affirmed.

The judgment as entered by the trial court against the defendant Jean Hardin Federico is hereby affirmed; and the cause is remanded to the trial court with directions to reduce the judgment rendered against the defendant Frank Federico by the amount of $50, and, as reduced, the judgment against him is to be affirmed. Costs to respondent.

McDonough, j., concurs.