Darden v. Witham, 19898

• Decision Date: 11 October 1974
• Docket Number: No. 19898,19898
• Citation: 209 S.E.2d 42,263 S.C. 183
• Court: South Carolina Supreme Court
• Parties: Colgate W. DARDEN, III, Appellant, v. Elizabeth J. WITHAM, formerly Elizabeth J. Darden, and the Virginia NationalBank of Norfolk, Virginia, Respondents.

Page 42

209 S.E.2d 42

263 S.C. 183

Colgate W. DARDEN, III, Appellant, v. Elizabeth J. WITHAM, formerly Elizabeth J. Darden, and the Virginia NationalBank of Norfolk, Virginia, Respondents.

No. 19898.

Supreme Court of South Carolina.

Oct. 11, 1974.

Lewis, Lewis & Robinson, Columbia, and Ray P. McClain, of Bryan, Epstein & McClain, Charleston, for appellant.

Burns, McDonald, Bradford, Erwin & Few, Greenwood, for respondents.

LEWIS, Justice:

The matter now before this Court is an outgrowth of our decision in Darden v. Witham, 258 S.C. 380, 188 S.E.2d 776. The action was originally brought by the appellant-Darden (herein called the husband), agaisnt the respondent-Witham (herein called the wife) as a declaratory judgment action to have the court declare the rights of the parties under a 1967 divorce decree, and a property settlement agreement adopted by the court as a part of the divorce decree. The property settlement agreement and the divorce decree provided that the husband make payments to the wife of $90,000 per year for ten years, to be followed by payments of $80,000 per year for an additional ten years, and also specifically provided that payments should continue during the stated periods regardless of the wife's remarriage.

In 1968, the wife remarried. In this action, the husband sought to have that portion of the agreement and decree concerning payments to the wife construed in the light of her remarriage and our divorce statutes, particularly Code Section 20--114. That statute provides '. . . in the even of the remarriage of the wife the amount fixed in such decree for her support shall forthwith cease and no further such payments shall be required from such divorced husband.' The lower court held that the husband's obligation to make payments continued notwithstanding the remarriage of the wife. We affirmed. Reference is made to Darden v. Witham, supra, for a more full understanding of the issues before us.

In our former opinion, we remanded the case to the lower court for the purpose of disposing of the wife's request to the court for fees to pay her attorneys. In discussing the husband's challenge that the lower court improperly granted leave to the wife to apply to that court for fees, we said:

'Darden excepts to that portion of Judge Ness' order which granted Witham leave to apply to the court for attorneys' fees.'

'. . . The fact that the same issues were presented by way of a declaratory judgment proceeding should not alter the obligation of Darden to pay attorneys' fees if, under Code Section 20--112, the court deemed this appropriate. Under these circumstance we feel that an award of an attorneys' fee is quite proper and the case is remanded to the lower court for disposition of that matter.'

Thereafter, the wife's attorneys requested the lower court to set reasonable attorneys' fees for their services. After an evidentiary hearing, the court ordered payment of $175,000 directly to the wife's attorneys. It is from this order that the husband appeals.

In his appeal, the husband raises four questions: (1) He charges error in the lower court's allowing any attorneys' fees under South Carolina Code Section 20--112 (1962) in the absence of a showing of need by the wife; (2) he challenges the constitutionality of Code Section 20--112; (3) he attacks the award given by the lower court as being excessive; and (4) he argues that it was improper for the lower court to make the award directly to the wife's attorneys instead of to her.

In considering the challenge of the award of suit money under Code Section 20--112, it becomes necessary to construe this court's decision in our prior Darden opinion.

At the evidentiary hearing, the judge construed our previous Darden opinion as holding that attorneys' fees should be paid. He refused to allow evidence on the question of the right to attorneys' fees and limited the hearing to the amount only. The husband contended at the hearing, and now contends before this Court, that our opinion only held that the application for attorneys' fees could be made. He argues that there has been no finding that the allowance of 'suit money' was 'well founded' as required by Code Section 20--112, which reads as follows:

'Section 20--112. Alimony; suit money.--In every action for divorce from the bonds of matrimony, the wife, whether she be plaintiff or defendant, may in her complaint or answer or by petition pray for the allowance to her of alimony and suit money and for the allowance of such alimony and suit money pendente lite. If such claim shall appear well founded the court shall allow a reasonable sum therefor.'

Normally, the burden of proving that a claim for suit money is 'well founded' is upon the wife, and normally, the husband is entitled to have the factual issue determined in the lower court, but under the facts of this case, the question of whether the wife's claim that her right to suit money is 'well founded' can no longer be in serious debate. At the evidentiary hearing on the attorneys' fees question, the husband admitted that he brought the action for the purpose of assuring to himself a tax advantage. He stated in response to his own counsel's question:

'Q. Now, when this case--when this appeal was begun, can you tell us why you decided to take this matter up under appeal?

'A. Well, it seems under the circumstances that I had no other alternative. Mr. Salley testified earlier today, the tax service that I subscribed to uncovered the situation with the Internal Revenue Service of the U.S., was challenging the deductibility of payments made in agreements such as the one I had signed, so that I would be confronted with on the one hand to be required by the Court to pay Ninety Thousand Dollars a year, and the Revenue Service on the other hand saying well the Court never had the authority to make you pay those, therefore, we disallow the deduction and charge you with a gift tax, and, of course, I don't have that much income.'

In his brief, he states:

'This action was commenced by the Appellant upon the advise of his tax counsel who informed him that as a result of Allan Hoffman, 54 T.C. 1607, that the deduction of the alimony payments might be in jeopardy.'

Although the husband states that he sought no affirmative relief against the wife, it is inescapable that he asked the court to hold that the payments could be discontinued. If the court agreed with his contention, the payments would be discontinued; and if the court disagreed with his contention, he preserved a tax advantage he sought to keep. In his brief, the husband concedes:

'. . . He is not now trying to avoid that Order; he is trying to insure that the award of attorneys fees, if any, is reasonable and warranted under the circumstances.'

In the light of the fact that the wife was thrown into litigation, jeopardizing her payments for the primary purpose of settling the husband's possible tax problems, we have no hesitancy in holding that the allowance of 'suit money' is 'well founded', and this is true whether she be financially able to pay her own attorney or not. The solemn agreement and the decree were designed to settle any monetary disputes between these parties. Certainly, it was never contemplated that the wife would have to litigate the agreement in order to preserve her rights.

The husband also attacks the constitutionality of Code Section 20--112, and argues that it violates the Fourteenth Amendment of the Constitution of the United States in that it provides for the payment of 'suit money's only to one class of litigants (wives), a classification by sex that is not rationally related to any constitutionally permissible governmental purpose.

The issue concerning the constitutionality of Section 20--112 was not presented in the lower court but was raised for the first time on appeal. The rule is well settled that a constitutional question not raised or passed upon in the lower court will be considered waived. The record reveals no reason to disregard this long established rule.

The next question presents the main issue in the appeal and involves the husband's contention that the award for attorneys' fees was excessive under the facts and circumstances of this case.

The testimony varied as to what a reasonable fee would be. Appellant's witnesses were of the opinion that a $75,000.00 fee would be reasonable; while respondent's witnesses varied in their opinions from $250,000.00 to $350,000.00. The trial judge, in the exercise of his discretion, set the fee at $175,000.00.

In determining the amount of the fee, the trial judge found 'that the legal questions here involved were novel, complex and difficult' requiring an exhaustive review and research of the decisions from many other states. Respondent's attorneys spent in excess of 750 hours in handling this matter. The amount involved in the controversy was in excess of $1,500,000.00, payable over a period of twenty years. If respondent won, she would receive that amount. If she lost, she would receive nothing. The attorneys involved in this litigation were, admittedly, successful lawyers, with excellent reputations and a high degree of professional skill.

With reference to the expert testimony presented by the parties, the trial judge stated:

'. . ., five eminently successful and outstanding attorneys testified as experts in this case and gave their professional opinion of a reasonable fee which should be paid to the Respondent's attorneys. Thomas H. Pope, Esquire, of the Newberry County Bar, G. Ross Anderson, Esquire, of the Anderson County Bar, and Terrell L. Glenn, Esquire, of the Richland County Bar, testified for the Respondent; and Augustus T. Graydon, Esquire, and John W. Thomas, Esquire, both of the Richland County Bar, testified for the Petitioner. All of these attorneys are experienced in the handling of novel legal questions involving large sums and each of them had, prior to their testimony, reviewed...