Warner v. Warner

SCHAUER, J.

I dissent. The complaint alleges that the parties were married on January 14,1946; that they separated on July 28, 1948; and that there are no children of the marriage ; the complaint was filed July 30,1948; it further alleges that the extent of the community property is unknown but that “Plaintiff is informed and believes, and on such information and belief, alleges that the total value of Defendant's separate property is in excess of $2,000,000.00.” There was a stipulation that “upon the trial of the case on the merits the balance, if any, of counsel fees might be fixed.”

Upon the above state of facts I am of the view that as a matter of law it was an abuse of judicial discretion to order $10,000 to be paid on account of attorneys’ fees before trial on the merits and largely in advance of the rendition of services of that value. There is no suggestion that there was any necessity, nor do the facts of the present record reveal any reasonable justification, for ordering payment of so large a sum in advance of trial on the merits. At the trial it may develop that under all the facts such a sum is grossly exorbitant, or fair, or quite inadequate; but requiring its payment in advance and on the record as it now stands is essentially speculative. As was well said by the District Court of Appeal in its unanimous opinion (speaking through Mr. Justice Drapeau) modifying the order appealed from: “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 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 ease with better regard for the rights of all parties concerned.” (Warner v. Warner (1949), 207 P.2d 622, 624.)

I would either modify the order by reducing the advance payment, as did the District Court of Appeal, or reverse and remand for further proceedings pendente lite.