Beardall v. Beardall

HALL, Justice

(concurring and dissenting):

I concur with the main opinion except as to its disposition of the issue of attorney’s fees.

The majority of the Court cites no authority for holding that the requisite evi-dentiary basis for an award of attorney’s fees may arise by mere implication, or that an award may be made if it be de minimis. Indeed, it appears that there is none.

An award of attorney’s fees must be based upon direct evidence adduced at trial as to: 1) need, 2) ability to pay, and 3) reasonableness of the fee to be awarded.¹ As stated in the case of Butler v. Butler:²

This court has consistently held that an attorney’s fee may not be awarded where there is nothing in the record to sustain the award either by way of evidence or by stipulation of the parties as to how the court may fix it.³ [Emphasis added, citations omitted.]

I would vacate the award of attorney’s fees.

1 . Kerr v. Kerr, Utah, 610 P.2d 1380 (1980).

2 . 23 Utah 2d 259, 461 P.2d 727 (1969).

3 . Id. at p. 261, 461 P.2d 727. See also, Adams v. Adams, Utah, 593 P.2d 147 (1979); Lincoln Financial Corp. v. Ferrier, Utah, 567 P.2d 1102 (1977); Richards v. Hodson, 26 Utah 2d 113, 485 P.2d 1044 (1971); John Deere Company of Moline v. Behling, 26 Utah 2d 30, 484 P.2d 170 (1971); Brasher Motor and Finance Co. v. Anderson, 20 Utah 2d 104, 433 P.2d 608 (1967); F. M. A. Financial Corp. v. Build, Inc., 17 Utah 2d 80, 404 P.2d 670 (1965).