Cluck v. Cluck, 16926

• Decision Date: 08 December 1982
• Docket Number: No. 16926,16926
• Citation: 647 S.W.2d 338
• Parties: Elwood CLUCK, Appellant, v. Margaret CLUCK, Appellee.
• Court: Texas Court of Appeals

Page 338

647 S.W.2d 338

Elwood CLUCK, Appellant, v. Margaret CLUCK, Appellee.

No. 16926.

Court of Appeals of Texas,

San Antonio.

Dec. 8, 1982.

Appellant's Rehearing Denied

Jan. 12, 1983.

Appellee's Rehearing Granted in Part;

Denied in Part Jan. 12, 1983.

Elwood Cluck, pro se.

Jack Pasqual, Pat Maloney, Soloman Casseb, San Antonio, for appellee.

Before CADENA, C.J., and ESQUIVEL and REEVES, JJ.

OPINION

REEVES, Justice.

The appellee in this case, Margaret Cluck, petitioned the trial court for a divorce from the appellant, Elwood Cluck. Appellant stipulated to his fault as the cause of the divorce. The trial court, without aid of jury, awarded the divorce to appellee, divided the community property and awarded attorney's fees. This appeal concerns the property division and the attorney's fees.

Appellant's first two grounds of error attack the award of attorney's fees to appellee's attorneys. Appellee initially retained Mr. Solomon Casseb, Jr. as counsel. Mr. Casseb filed the original petition for divorce, which included the following:

Petitioner states that it was necessary to secure the services of the undersigned attorney to represent her herein, that such services were necessary and proper for the preservation and protection of petitioner's rights, and a reasonable attorney's fee should be awarded and judgment rendered in favor of said attorney and against respondent.

The petition closed with a prayer which requested, in part, that "Judgment be rendered in favor of her attorney for his attorney's fees." Casseb withdrew from the case by written motion granted by the court on January 19, 1981. Mrs. Cluck's new counsel, Pat Maloney, Sr. and Associates, including Mr. Jack Pasqual, entered the suit with a formal notice of appearance on February 2, 1981. In the divorce decree, the trial court awarded Mr. Casseb $5000.00 and Maloney and Pasqual $46,000.00 in attorney's fees. Appellant stipulated that the reasonable legal services rendered by Casseb amounted to $5,000.00. The appellant alleges that the pleadings do not support the award to Casseb or Maloney and Pasqual, and the evidence does not support the award to Maloney and Pasqual. Appellee responds that appellant did not specially except to her pleadings and did not object to the evidence offered to prove attorney fees.

The award of attorney's fees in a divorce action is treated as part of the fair and just division of the marital estate. It is incumbent upon the party seeking recovery of attorney fees to prove that it is necessary to employ the attorney and the reasonableness of the attorney fee. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1005 (1950). Fees are recoverable either in the wife's name or by the attorneys as parties. Akin v. Akin, 276 S.W.2d 323, 325-326 (Tex.Civ.App.--Austin 1955, writ dism'd); Jeter v. Jeter, 281 S.W. 598-600 (Tex.Civ.App.--Dallas 1926, no writ). If appellee has inadequately pleaded for recovery of attorney's fees, appellant waived the error by his failure to specially except to appellee's pleadings. See Lampsman v. First National Bank in Dallas, 463 S.W.2d 28, 29 (Tex.Civ.App.--Waco 1970, writ ref'd n.r.e.); Chapman v. Chapman, 172 S.W.2d 127, 128 (Tex.Civ.App.--Fort Worth 1943, writ dism'd).

In overturning the trial court's judgment in the award of attorney's fees in a divorce case it must appear that there has been a clear abuse of discretion. See Lewis v. Lewis, 218 S.W.2d 220, 221-222 (Tex.Civ.App.--Fort Worth 1949, no writ). Appellant contends that appellee's first counsel, Mr. Casseb, is not entitled to attorney's fees because he had withdrawn as attorney of record and did not appear at trial. We find that Judge Casseb performed preparatory work as an attorney in this case. He is entitled to compensation for the legal work performed. He appeared in court to testify as to the reasonableness of his fees and appellant stipulated that the reasonable value of his legal services was $5000. The fact that Judge Casseb withdrew as attorney of record did not remove him from the lawsuit in regard to attorney fees earned to the time of his withdrawal. To hold otherwise would require a separate law suit to pursue his cause of action for attorney fees.

As to the $46,000 awarded to Mr. Maloney and Mr. Pasqual and Associates, we also find that there is evidence to support the recovery. Appellee called Mr. Oliver Heard, a board certified specialist in the family law area, to testify as to the appropriate award of fees in this case. Mr. Heard's testimony, upon which the trial judge apparently based the specific dollar amounts awarded to appellee's attorneys, was not controverted by appellant at trial. Appellant contests appellee's good faith in bringing this action, her financial need, and the necessity of retention of counsel. We find that the record supports these elements which are necessary for the recovery of attorney's fees. We note that this was a complicated and protracted law suit. Moreover, the disparate earning capacity of appellant and appellee is apparent from the record. Appellant was the sole income earner in his family, while appellee had been employed for a short time during the first year of their approximately 30 years of marriage. We reject appellant's first two points of error.

Appellant complains in point of error number three that the court erred in declaring the two trusts to be null and void because: (1) there was no evidence or pleadings to support the action of the court; (2) that the two children of the marriage of appellant and appellee, who were contingent beneficiaries of the trust, were not made parties to the suit; and (3) that the court lacked jurisdiction pursuant to Family Code 3.63 to declare said trust null and void.

We again note that the first time the appellant raises the insufficiency of the pleading was in an instrument appellant styled "Motion for New Trial and to Modify, Correct or Reform the Judgment." Appellee's pleadings called for a division of the community property. Evidence was introduced that the corpus of each trust were community property. No objection was made during trial to the introduction of evidence concerning these trusts. See Lampsman v. First National Bank in Dallas, supra.

As to appellant's contention that the residence situated at 300 Mandalay Drive East, San Antonio, Texas, was in trust and not properly before the court, we note that in the original inventory appellant described the property and then stated, subject to trust indenture dated December 23, 1976, executed by Elwood Cluck, settlor, and Margaret Cluck, trustee. In his amended inventory he lists as community property the property situated at 300 Mandalay Drive East, in San Antonio, Texas, again describing the property but deleting any reference to a trust. There was no 300 Mandalay trust indenture introduced into evidence. There being no evidence before the trial court as to a "300 Mandalay Drive East Trust" the trial court properly treated it as community property.

There was introduced into evidence a trust instrument styled 4 12/52 Ranch Trust wherein appellant, as settlor, transferred to Margaret Cluck, trustee and as primary beneficiary, lands situated in Burnet County, Texas. The contingent or secondary beneficiaries are the children of the parties. The real estate owned by the trust was sold and part of the consideration was a note executed by the purchasers payable to Margaret Cluck individually and as trustee. Appellant contends that the income (interest) earned was community property while the principal belonged to the trust. Assuming appellant's position as to the ownership in the note is correct, the trial court, in its discretion, had authority to award appellant's interest in the note to appellee, and he has no standing to complain as to the children's interest in the note. The children of the parties, both over eighteen years of age, are not bound by the judgment and have standing to contest the ownership of the note. Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.1974).

Appellant, by his fourth point of error, challenges the authority of the trial court in awarding a membership in the San Antonio Country Club to appellee. The San Antonio Country Club is a voluntary association organized as a non-profit corporation. Membership in the club is by invitation of the Board of Governors and the Board has the authority to terminate membership. The by-laws of the club provide, in part:

Upon the death of any stockholding member of the club, or upon the resignation or dismissal of any member of upon such member being dropped for any cause from membership of the club, or upon acceptance by the Board of an application for a senior membership, or upon acceptance to become an associate member, or upon transfer to a non-resident member, the Board of Governors shall have the prior right to purchase for the corporation, the share or shares of stock held by such member for $1,000.00, provided, however, the widow or widower or adult son or daughter of a deceased member may have the deceased member's share transferred to their name without payment of initiation fee, upon being invited to stockholding membership by the Board of Governors. Upon the certificate evidencing such share of stock issued or transferred, there shall be endorsed the following:

The stock is nonnegotiable and nontransferable except on the books of the club, and only after the club has been afforded an opportunity to exercise its option to purchase the same for $1,000.00 per share.

Appellant, upon paying his initiation fee, was granted membership in the club in his name only.

The divorce decree provided: petitioner, "Margaret Cluck, is awarded the following property as her sole and separate property and estate, and respondent, Elwood Cluck, is hereby divested of all right, title and interest in and to such property, to-wit:"

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M. All right, title, interest, equity and ownership in and to the San...