Ex parte James

CourtSupreme Court of Alabama
Citation764 So.2d 557
PartiesEx parte Sonja Maria JAMES. (In re Jerry Wayne James v. Sonja Maria James).
Decision Date19 November 1999

764 So.2d 557

Ex parte Sonja Maria JAMES.
(In re Jerry Wayne James v. Sonja Maria James)


Supreme Court of Alabama.

November 19, 1999.

Rehearing Denied January 7, 2000.

764 So.2d 558
J. Doyle Fuller, Montgomery; and John D. Clement, Jr., Tuscumbia, for petitioner

Thomas E. Baddley of Baddley & Mauro, L.L.C., Birmingham; Steve A. Baccus of Almon, McAllister, Baccus & Hall, Ruscumbia; and Andrew P. Campbell, David M. Loper, and Eric D. Hoaglund of Campbell, Waller & McCallum, L.L.C., Birmingham, for respondent.

HOUSTON, Justice.

The Circuit Court of Colbert County ruled in favor of Sonja James in a divorce action, awarding, among other things, an attorney fee for her attorney. Her husband, Jerry James, appealed. The Court of Civil Appeals affirmed in part and reversed in part. One item that court reversed was the trial court's award of the attorney fee. James v. James, 764 So.2d 549 (Ala.Civ.App.1999). We granted Sonja James's petition for certiorari review, on the sole issue of the attorney fee. We reverse and remand.

764 So.2d 559
On May 6, 1996, after 14 years of marriage, Sonja James sued for a divorce from Jerry James. At trial, her attorney, John Clement, requested an attorney fee. He testified that he had worked approximately 875 hours on the case and that his normal fee was $125 per hour. In addition, he said he had incurred expenses of more than $20,000. Thus, he claimed more than $129,375 for the entire case. The trial court ordered the parties to submit written closing arguments. In his argument, Jerry James argued that it would be unreasonable to award Clement a fee because Clement could offer no evidence, such as time records, indicating the amount of time he had spent on the case. The trial court awarded Clement a $100,000 attorney fee. This fee was to be taken out of the marital estate, which was to be divided 2/3 to Jerry James and 1/3 to Sonja James; therefore, after the attorney fee was taken out, Jerry James was responsible for $66,666.67 of Clement's fee. Jerry James filed no post-trial motions before appealing to the Court of Civil Appeals

There are two issues before this Court: 1) Did Jerry James properly preserve for review the issue whether the attorney fee awarded to Clement was unreasonable? 2) If so, was that fee in fact unreasonable?

In a case tried before a jury, to preserve for appellate review a question of the sufficiency of the evidence, a party must raise that question in a Rule 50(a), Ala. R. Civ. P., motion for a judgment as a matter of law, at the close of all the evidence. Barnes v. Dale, 530 So.2d 770, 776-77 (Ala.1988). This principle does not apply in a nonjury case. Seier v. Peek, 456 So.2d 1079, 1081 (Ala.1984). However, the law provides another rule for a rather unique situation. In Ex parte Vaughn, 495 So.2d 83, 87 (Ala.1986), this Court held:

"Rule 52(b) provides an exemption from the requirement of invoking a ruling by the trial court on the issue of evidentiary insufficiency when written findings of fact are made. The trial court's ruling on the sufficiency of the evidence is implicit in a decree in which the trial judge is the trier of the facts. Moreover, by making written findings of fact, the trial judge has had the additional opportunity to reconsider the evidence and discover and correct any error in judgment which he or she may have made upon initial review. Thus, when written findings of fact are made, they serve the same useful purpose as does an objection to the trial court's findings, a motion to amend them, a motion for a new trial, and a motion to dismiss under Rule 41(b),...—to permit the trial judge an opportunity to carefully review the evidence and to perfect the issues for review on appeal."

Consequently, when the trial court has made no written findings of fact in a nonjury trial, a party must move for a new trial in order to preserve for review a question relating to the sufficiency or weight of the evidence.

The trial court was sitting as the trier of fact. It did not make any specific written findings of fact in its final order awarding Clement $100,000. This award, in and of itself, is a finding of fact based on arguments made by...

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1 cases
  • Durbin v. Durbin
    • United States
    • Alabama Court of Civil Appeals
    • December 1, 2000
    ...common benefit of the parties during the marriage. James v. James, 764 So.2d 549 (Ala.Civ. App.), reversed on other grounds, Ex parte James, 764 So.2d 557 (Ala.1999), cited by the wife in support of her contention that income from the corporation was used for the common benefit of the parti......

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