Baskerville v. Baskerville

• Decision Date: 09 March 1956
• Docket Number: 36701,Nos. 36700,s. 36700
• Citation: 246 Minn. 496,75 N.W.2d 762
• Parties: Walter G. BASKERVILLE, Sr., Respondent, v. Edna D. BASKERVILLE, Appellant.
• Court: Minnesota Supreme Court

Page 762

75 N.W.2d 762

246 Minn. 496

Walter G. BASKERVILLE, Sr., Respondent, v. Edna D. BASKERVILLE, Appellant.

Nos. 36700, 36701.

Supreme Court of Minnesota.

March 9, 1956.

Syllabus by the Court.

1. Either party to an action, by filing an affidavit of prejudice under Rule 63.03 of Rules of Civil Procedure (which supersedes M.S.A. § 542.16), may, as a matter of right, disqualify only one judge.

2. After a litigant has once disqualified a presiding judge as a matter of right under Rule 63.03, he may disqualify the substituted judge under Rule 63.02 but only by making an affirmative showing of prejudice and by seasonably implementing such showing by appropriate motion or by obtaining a writ of prohibition.

3. A litigant who, in the absence of fraud or other controlling circumstance, elects to go to trial without taking timely and appropriate action to disqualify a judge for bias waives his right to assert such bias.

4. The fee arrangements made between attorney and client are collateral to the relationship and are not a part of any confidential communication to which a claim of privilege may attach.

5. Testimony with respect to the fee arrangements between the wife and her attorneys in a divorce action is relevant and material since the court may deem it necessary to consider what amount the wife has agreed to pay for legal services so that its provisions for alimony and property awards are not in substantial part rendered nugatory.

6. A contract for the payment of a fee to an attorney contingent upon his procuring a divorce for his client or contingent in amount upon the amount of alimony and property awarded to the wife is void as against public policy.

7. Discovery under the new rules is as fully available in a divorce action as in any other action.

8. The tenor of the new rules is to permit a wide discovery and investigation of the facts under Rule 26.02 and Rule 34 but not to permit such discovery and investigation to be used in bad faith or in such a manner as unreasonably to annoy, embarrass, oppress, or injure the parties or witnesses, Rules 30.02, 30.04, 45.02.

9. The court has inherent power in conducting a trial to control, in the interest of justice, the order of the presentation of issues and the order of proof.

10. An award of alimony is granted not as a matter of right, and the award, and the amount thereof, rests in the sound discretion of the trial court.

11. The delinquency of the parties is a material element in fixing the amount of alimony and the division of property.

12. In a divorce action, where discovery procedures directed toward the establishment of the husband's net worth involve burdensome expense and an exposure of the parties and witnesses to unreasonable oppression and injury within the meaning of Rules 30.02 and 45.02, the trial court may, in its discretion, require both parties first to litigate the issue of whether either party is entitled to a divorce, and the further issue of whether any delinquency of the parties has been of a nature and degree which is material in fixing the amount of alimony, if any be awarded.

13. Where nonprivileged evidence is relevant and essential to a fair adjudication of issues, the protective powers of the court should be exercised not to exclude the evidence absolutely but to admit it with protective safeguards.

14. Since the delinquency of the parties is a factor to be considered in fixing the amount of alimony and the division of the property, its significance as a factor increases with the degree of delinquency with the result that in an exceptional case the marital misconduct may be so grave that the wife is not entitled to an amount of alimony and property in any proportion to the husband's estate, and the award thereof may then be made without establishing the total value of the husband's property.

15. The two Klampe v. Klampe cases, 137 Minn. 227, 163 N.W. 295, and 145 Minn. 404, 177 N.W. 629, are hereby expressly overruled insofar as they permit an attorney who is a party to a contingent fee contract in a divorce action to recover what his services are reasonably worth.

Emerson Hopp, Chester W. Johnson, and Edna D. Baskerville, Minneapolis, for appellant.

Perry R. Moore and Mackall, Crounse, Moore, Helmey & Palmer, Minneapolis, for respondent.

MATSON, Justice.

Defendant appeals from a judgment granting plaintiff an absolute divorce and also from an order denying her motion for a new trial.

Plaintiff brought his action for an absolute divorce on the ground of cruel and inhuman treatment and requested custody of the two minor children, namely, Walter G. Baskerville, Jr., and Harriet Ann Baskerville, of the respective ages of 15 and 13 years at the time of trial. Defendant, by her cross complaint, asked for a divorce on the grounds of habitual drunkenness and cruel and inhuman treatment. She also asked for custody of the children. The trial, which began on October 4, 1954, lasted approximately five weeks. ¹

The trial court granted plaintiff an absolute divorce and awarded him the custody of the children. After finding that the defendant possessed (as a result of prior gifts to her by the plaintiff) sound marketable securities of the value of approximately $40,000 from which she derived a monthly income of $136.25, the trial court awarded her alimony of $500 per month. The trial court found that defendant had employed one of her attorneys on a contingent fee contract basis whereby he was to receive 15 percent of any and all alimony and property awarded to her, and further that the other attorneys appearing in her behalf were employed by such attorney as his assistants. It was determined by the trial court that defendant's attorneys were reasonably entitled for their services to a fee of $2,750.

After entry of judgment for the plaintiff, defendant moved for a vacation of the judgment and for an amendment of the findings and conclusions of law upon which such judgment was based or in the alternative for a new trial. This motion was denied and we have this appeal from such order and from such judgment.

We have issues as to: (1) The disqualification of a trial judge for bias; (2) the admissibility of evidence as to the fee arrangement between the wife and her attorneys when there is no dispute between them as to the attorneys' fees; (3) the validity of a contingent fee contract in divorce cases; (4) the availability in divorce cases of the discovery procedures under the new rules of civil procedure; (5) the right of a trial court to deny or limit an inquiry into the internal affairs of third-party corporations in which the husband is a minority stockholder for the purpose of determining the net worth of the corporations as a means of establishing the value of the husband's stock; (6) the right of a trial court to fix the amount of alimony without ascertaining and taking into consideration the value of the husband's property; and (7) the reasonableness of the alimony awarded.

Disqualify One Judge Under Rule 63.03.

1. Defendant filed an affidavit of prejudice against Judge Paul S. Carroll. When the case was subsequently assigned to Judge John A. Weeks, the defendant made an oral ex parte request that the latter also disqualify himself for bias. Judge Weeks indicated that defendant might file an affidavit of prejudice if she so desired. Without more, the case came on for trial, and the issue of bias was not again raised until defendant made a motion for a mistrial near the close of the case. Either party to an action, by filing an affidavit of prejudice under Rule 63.03 of Rules of Civil Procedure (which supersedes M.S.A. § 542.16), may, as a matter of right, disqualify only one judge. ² On a multiple bench a substituted judge will usually voluntarily disqualify himself for prejudice when either party makes any seasonable showing of prejudice unless it appears that the assertion of such alleged prejudice is for the unjustifiable purpose of eliminating a succession of judges in an effort to obtain a so-called favorable judge.

Disqualification of Substituted Judge

Under Rule 63.02.

2. Although a presiding judge has been disqualified as a matter of right under Rule 63.03, a substituted judge may be disqualified under Rule 63.02 (which has superseded § 542.13) upon a showing that he is interested in the determination of the cause or that he might be excluded for bias if he were acting therein as a juror. After a litigant has once disqualified a presiding judge as a matter of right under Rule 63.03, he may disqualify the substituted judge under Rule 63.02 but only by making an affirmative showing of prejudice and by seasonably implementing such showing by appropriate motion ³ or by obtaining a writ of prohibition. ⁴

Waiver of Right to Disqualify Judge for Bias.

3. In the instant case defendant went to trial without taking any affirmative action whatever to disqualify the substituted judge for bias, and she is now in no position to complain. It is the duty of the lawyer as an officer of the court to act in a timely manner in asserting his client's right to disqualify a judge for bias to the end that there may be no unnecessary delay in the orderly administration of justice. ⁵ A litigant who, in the absence of fraud or other controlling circumstance, elects to go to trial without taking timely and appropriate action to disqualify a judge for bias waives his right to assert such bias. ⁶ Whether a mistrial may ever be declared for Actual bias we need not here determine since the record herein fails to disclose such bias. Nonprivileged Status of Fee

Arrangements with Client.

4. The court did not err in overruling objections to questions put ot the defendant concerning the fee arrangements she had with her attorneys whereby it was disclosed that the latter were to receive for their services 15 percent of any alimony and property awarded to her. No privilege between attorney and client was involved in contravention of ...