Castor v. Castor

• Decision Date: 28 August 1975
• Docket Number: No. 2--675A142,2--675A142
• Citation: 165 Ind.App. 520,333 N.E.2d 124
• Parties: Vivian J. CASTOR, Appellant, v. Worth H. CASTOR, Appellee.
• Court: Indiana Appellate Court

Page 124

333 N.E.2d 124

165 Ind.App. 520

Vivian J. CASTOR, Appellant, v. Worth H. CASTOR, Appellee.

No. 2--675A142.

Court of Appeals of Indiana, Second District.

Aug. 28, 1975.

David E. McClure, McClure & McClure, Indianapolis, for appellant.

George M. Ober, Indianapolis, Melvin A. Richards, Jr., Castor, Richards & Adams, Noblesville, for appellee.

SULLIVAN, Presiding Judge.

On February 28, 1975, Vivian J. Castor (Wife) filed a petition for dissolution of marriage pursuant to Ind.Ann.Stat. § 31-- 1--11.5--4 (Burns Code Ed., 1974) against respondent Worth H. Castor (Husband). Wife then petitioned the court for temporary 'support' in the amount of $177.00 per week and preliminary attorney's fees under Ind.Ann.Stat. §§ 31--1--11.5--7 and 31--1--11.5--16 (Burns Code Ed., 1974 Supp.). The trial court held a hearing on May 8, 1975, to consider the matters presented by Wife's petition. At the conclusion of that hearing, the court made the following findings and issued the following order:

'Court further finds that based on the case law in the State of Indiana and based on the fact that it was shown that the petitioner has in excess of $11,000 of personal assets, she is not entitled to any suit monies or attorney fees whatsoever. However, the respondent is ordered to pay to the petitioner's attorney the sum of Two Hundred Fifty Dollars ($250.00) within thirty (30) days for expenses. Court further finds that the respondent should be ordered to pay the sum of Seventy-five dollars ($75.00) per week for a period of eight (8) weeks for support, and that thereafter, the support order will stop. That further, after that time the restraining order as to the petitioner's assets is removed and dissolved. Further, the respondent is ordered to pay the electric bill, trash bill, and keep in full force and effect a certain medical insurance policy, to-wit: Blue Cross-Blue Shield. The petitioner will bear all other normal expenses which she incurs. The above is therefore considered, ordered, adjudged and decreed this 8th day of May, 1975.'

Being dissatisfied with the trial court's findings and order, Wife appeals.

I

JURISDICTION EXISTS IN APPEAL FROM INTERLOCUTORY ORDER FOR

MAINTENANCE AND ATTORNEY FEES

The parties correctly assume that jurisdiction lies in this court to review the temporary order in question. The statutory provisions here considered, for temporary maintenance (denominated in the order as 'support'), for 'suit money', and for attorney fees are more detailed and specific than in their generalized predecessor, Ind.Ann.Stat. § 31--1--12--11 (Burns Code Ed. 1973). The new provisions, however, like the old, concern the 'payment of money' and are therefore appealable interlocutory orders pursuant to Ind. Rules of Procedure, AP. 4(B)(1). See Bell v. Wabash Valley Trust Co. (1973), Ind.App., 297 N.E.2d 924 citing Haag v. Haag (1959), 240 Ind. 291, 163 N.E.2d 243.

Wife seeks reversal of the interlocutory order upon the following assertions of error:

1. Exclusion of evidence of work performed by Wife's attorney prior to filing the petition for dissolution.

2. Exclusion of evidence as to time spent by Wife's attorney in discussion with her concerning Husband's assets.

3. Exclusion of evidence of Husband's assets and income.

4. Contrariness of the trial court's findings and order to law and to the evidence.

II

EXCLUSION OF TESTIMONY CONCERNING SPECIFIC SERVICES RENDERED

BY ATTORNEY NOT REVERSIBLE ERROR

For convenience, we consider together the alleged errors concerning exclusion of evidence pertaining to Wife's attorney's preliminary fees. We hold that the trial court did not err in excluding Wife's attorney's testimony relating to time spent by him prior to filing the original petition for dissolution and in discussion with Wife of Husband's assets.

Our review of a trial court's determination of the amount, if any, of preliminary attorney's fees and costs to be awarded one party in a dissolution proceeding is limited to a search for abuse of discretion. See e.g., McDaniel v. McDaniel (1964), 245 Ind. 551, 201 N.E.2d 215; Cox v. Cox (1975), Ind.App., 322 N.E.2d 395; DeLong v. DeLong (1974), Ind.App., 315 N.E.2d 412; Northup v. Northup (1972), Ind.App., 290 N.E.2d 501. While the cited cases were decided under the prior statute authorizing attorney's fees pendente lite, the permissive language employed in the current statute compels the same review:

'31--1--11.5--16. Costs--Attorney's fees.--The court from time to time may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter (31--1--11.5--1--31--1--11.5--24) and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceedings or after entry of judgment. The court may order the amount to be paid directly to the attorney, who may enforce the order in his name. (IC 1971, 31--1--11.5--16, as added by Acts 1973, P.L. 297, § 1, p. 1585.)' (Burns Code Ed., 1974 Supp.) (Emphasis supplied).

While § 31--1--11.5--16 contemplates a more orderly and chronological consideration by a court of all completed legal services rendered as of the time of the particular interlocutory hearing, we are unable to say as a matter of law that such unchronological consideration as here indicated constitutes an abuse of discretion.

It is not uncommon or improper for a trial court by local practice to award attorney fees pendente lite or preliminarily which are partial fees only. We cannot say that it is an abuse of discretion for such preliminary fees to be more or less standardized and unrelated directly to a specific and accurate assessment of the hours spent or to the nature of each service rendered by counsel.

Exclusion, at the interlocutory stage, of evidence of certain services performed and time spent by counsel relating to the divorce proceeding in general and to matters concerning final settlememt of property is not tantamount to a denial to the attorney of compensation for those services nor a denial of reimbursement to a wife for payments to her attorney.

We recognize that preliminary or interlocutory fees awarded may not compensate for all time and services rendered to that time but such services as are not compensated by the preliminary fee award are recoverable through a subsequent order or through the final decree. Such final decree may consider all legal services rendered during the course of the proceeding, place a value upon such services as are to be paid for by the opposing party, and may award a fee reduced by the amount of any preliminary fee awards assessed and paid. The trial court's exclusion of Wife's attorney's testimony at this preliminary stage was not error. Compare Hardiman v. Hardiman (1972), Ind.App., 284 N.E.2d 820.

III

EXCLUSION OF EVIDENCE OF HUSBAND'S ASSETS AND INCOME NOT

PREJUDICIAL TO WIFE

Wife next alleges that the exclusion of evidence concerning Husband's income and assets was error. She asserts that the fact she was granted $75.00 per week temporary maintenance, rather than the $177.00 she sought, is proof that the error in fact prejudiced her. We hold that, under the circumstances of this case, any error which may have occurred in the exclusion of evidence respecting Husband's assets did not prejudice Wife and therefore does not require reversal.

Wife correctly directs us to cases involving support pendente lite wherein it has been stated that '(t)he ability of the husband to pay should also be made to appear.' Snider v. Snider (1913), 179 Ind. 583, 588, 102 N.E. 32, 33; Rooney v. Rooney (1952), 231 Ind. 443, 445, 109 N.E.2d 93 (quoting Snider). While here the trial judge did refuse to hear testimony as to Husband's earnings, in so doing he stated that:

'She's testified to $177 a week; hasn't she?

MR. McCLURE: That is correct.

THE COURT: Mr. Castor has been paying $60 a week . . . he makes a sufficient income whether he makes 30, 50, 70, 100, 150 thousand dollars a year to pay her a reasonable amount of support.

THE COURT: I'm not going to prejudice you in any way by not going into that because I'm going to assume whatever I order whether it's $177 a week, $200 or $250--he's got sufficient income to pay it. I know that he's a successful lawyer and I'm not going to sit here and listen to how much he makes. Make your record.'

Thus here, any error resulting from the factual assumption of Husband's ability to pay without presentation of evidence was to the prejudice of Husband rather than to Wife since the trial court concluded that Husband had ability to pay even more maintenance than Wife had demanded. The error, if any, is not, therefore, cause for reversal.

IV FINDINGS AND ORDER NOT CONTRARY TO LAW

Wife's final assertion of error is that the findings and order of the trial court are contrary to law. Specifically, she contends that the trial court erred in finding and ordering that:

(A) Wife was entitled to no attorney's fees pendente lite, save $250.00 'for expenses' to be paid directly to her attorney by Husband;

(B) Wife was entitled to only $75.00 per week support pendente lite rather than the $177.00 she had sought;

(C) Wife should be restrained from disposing of any property during the eight week period;

(D) Wife's temporary support should continue for only eight weeks after entry of the order.

(A) AWARD TO ATTORNEY FOR 'EXPENSES' ONLY, NOT ERROR

We have already noted that our review of the determination of attorney's fees pendente lite is extremely limited in that we may not reverse unless convinced that the trial court has abused its discretion. This court has stated that:

'In Indiana the husband does not bear an absolute duty to pay the legal fees generated by his wife in a divorce action and as earlier noted the court has discretion whether to assess fees against the husband. State ex rel. DeArmond v. Superior Court (1940) 216 Ind. 641, 25 N.E.2d 642; Becker v. Becker (1966), 141...