Abel v. Abel, 33259
| Decision Date | 10 November 1955 |
| Docket Number | No. 33259,33259 |
| Citation | 289 P.2d 724,47 Wn.2d 816 |
| Court | Washington Supreme Court |
| Parties | Eva M. ABEL, Respondent, v. Walter Clive ABEL, Appellant. |
Lester T. Parker, Clark W. Adams, Aberdeen, for appellant.
Hyndman & Hyndman, Hoquiam, Paul O. Manley, Aberdeen, for respondent.
This is an appeal from a judgment entered by the trial court in a divorce proceeding. The assignments of error pertain to the amount of attorneys' fee allowed, the disposition of the property, the jurisdiction of the court to establish a trust in a third person for the benefit of the children, and its jurisdiction to impose a lien upon property outside the state of Washington.
The appellant's first assignment of error alleges that the court abused its discretion in fixing a fee for respondent's attorneys in the sum of $25,000. The property involved had a gross value of $1,691,849.53, and a net value of $1,544,496.16. The case was in litigation for two years. It was necessary for respondent to compel appellant to furnish an itemized list of the assets, both separate and community. In order to arrive at a determination of the fair market value of the property, respondent employed accountants, and caused timber cruises to be made. The property was located in California, Oregon, and at least six counties of the state of Washington. It consisted principally of logging equipment, timberlands, logged-off land, and stocks in timber and land corporations.
Counsel's preparation for trial required study of the accountants' reports and of the cruises. There were numerous court hearings, motions, and continuances, and five days of actual trial.
It was the contention of the appellant that virtually all of the property involved was separate property. The court found that the community owned property of the value of $747,055.33, and from this awarded respondent property of the value of $250,000.
No expert testimony was offered for the guidance of the court in its determination of a reasonable attorneys's fee. RCW 26.08.190 [cf. Rem.Supp.1949, § 997-19] provides, in part, that '* * * the court may, in its discretion, award attorneys' fees and costs to either party.'
Appellant does not question the propriety of the court's allowance of an attorneys' fee. The assignment of error is that the amount allowed by the court is so excessive as to establish an abuse of discretion.
The statute gives to the court discretionary power to determine (1) whether or not an attorneys' fee will be allowed, and (2) the amount of such fee. This court is a reviewing body, and causes are not tried de novo on appeal. To substitute this court's opinion for that of the trial court would be, in effect, considering the cause de novo. To justify interference by a reviewing court, in cases where it is alleged that a trial court abused its judicial discretion, proof that the discretion exercise was clearly untenable or manifestly unreasonable is required. Berol v. Berol, 1950, 37 Wash.2d 380, 382, 223 P.2d 1055. Abuse of judicial discretion is, therefore, never presumed.
In Rentel v. Rentel, 1951, 39 Wash.2d 729, 735, 238 P.2d 389, this court announced that the following should be considered in determining reasonable attorneys' fees: (1) The factual and legal questions involved, (2) the time necessary to prepare and present the case, and (3) the amount and character of the property involved. The results obtained and all other factors bearing thereon are also proper elements to be considered.
Applying this test in the instant case, the factual and legal questions were numerous, the time necessary to prepare and present the case was over two years, the value of the property involved was more than $1,500,000, $250,000 was awarded to respondent, and a child custody award favorable to the respondent was obtained. In his brief, appellant cites many cases which indicate that the value of the property involved does not, of itself justify a fee in the amount here allowed. From a reading of the cited cases, we are unable to determine what factors guided the courts in determining the fees therein fixed. This court is committed to the principle that each case must be determined upon its own facts, applying thereto to test announced herein.
From the record before us, we hold that the trial court did not abuse its discretion in fixing the fee of $25,000 for respondent's attorneys.
The appellant's second assignment of error challenges the jurisdiction of the court to establish a trust in a third person for the benefit of the children. He contends that the statute provides that property shall be disposed of between the parties, and that to impound funds in a third person as trustee is beyond the express statutory provisions of our divorce law, for the reason that such a trustee is not a party to the action.
RCW 26.08.110 [cf. Rem.Supp.1949, § 997-11] provides, in part, that the court shall make such disposition of the property
'* * * as shall appear just and equitable, having regard to the respective merits of the parties, * * * and to the burdens imposed upon it for the benefit of the children, and shall make provision * * * for the custody, support and education of the minor children of such marriage. * * *'
The appellant cites Quient v. Quient, 1919, 105 Wash. 315, 177 P. 779, in support of his contention that the disposition of the property must be between the parties. In that case, this court approved the establishment of a trust for the support of the child, in which trust the mother of the child was nominated as trustee. The case is authority for the proposition that the court has power to establish a trust. It is not authority for the contention that it would be error to nominate a third person as trustee. That issue was not before the court.
In Cozard v. Cozard, 1907, 48 Wash. 124, 92 P. 935, this court approved an award directly to the children of property involved in a divorce action. Since minor children are not parties to a divorce action, an award to them directly is a disposition of the property other than between the parties to the action. This court, therefore, has approved the disposition of property to persons other than the parties to the divorce action, when the care, support, and welfare of children are involved.
It follows, therefore, that, in giving effect to the court's duty to make provision for the welfare of children during their minority, part of the property may be impounded in a trust, either where one of the parties is named as trustee or where a third person is named as trustee.
Appellant argues that it is not known if the trust company selected by the court would assume the duties of the trust. In this regard, the court requested in its memorandum opinion that the parties agree upon a trustee to be named. They failed to inform the court of their choice. Thereupon, the court named a corporation engaged in that business to act as trustee, reserving in the court the right to approve the trust agreement when presented. The question of the nominated trustee's refusal to act is not...
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