Greiner v. Greiner

• Decision Date: 16 January 1979
• Docket Number: No. 3-675A130,3-675A130
• Citation: 384 N.E.2d 1055,179 Ind.App. 61
• Parties: Charles Rowland GREINER, Defendant-Appellant, v. Thelma Mae GREINER, Plaintiff-Appellee, Nona L. Noel, Pro-se, Appellee.
• Court: Indiana Appellate Court

Page 1055

384 N.E.2d 1055

179 Ind.App. 61

Charles Rowland GREINER, Defendant-Appellant, v. Thelma Mae GREINER, Plaintiff-Appellee Nona L. Noel, Pro-se, Appellee.

No. 3-675A130.

Court of Appeals of Indiana, Third District.

Jan. 16, 1979.

Dissenting Opinion Jan. 18, 1979.

Orval W. Anderson, Gary, for defendant-appellant.

Rudolph Tanasijevich, Hammond, for plaintiff-appellee.

HOFFMAN, Judge.

This is an appeal from a judgment allowing attorney fees pursuant to a decree of divorce in which a property settlement was agreed to by the parties. The issue raised concerns an alleged abuse of discretion by the trial court in fixing the amount of those fees.

The record reveals the following evidence most favorable to the trial court decision. In August 1973, Thelma Mae Greiner entered into an attorney-client relationship with Nona L. Noel for the purpose of seeking counsel with regard to difficulties arising out of her marriage to Charles Rowland Greiner. The fee to be paid for Mrs. Noel's services was to be based on "the number of hours . . . spent and how difficult the work was and how hard it was to put it together." At Mrs. Greiner's direction, a complaint was filed for separation from bed and board on August 31, 1973, pursuant to IC 1971, 31-1-22-1 (Burns Code Ed.). ¹

Thereafter, Noel began discovery proceedings to ascertain the joint marital assets which would be pertinent to the determination of a property settlement. Among other things, Noel had Mrs. Greiner list the types of business with which her husband was involved. From this and other factors Noel formed an opinion about the Greiners' net worth which she concluded to be about $350,000 greater than those assets listed by the husband through his counsel. Unable to obtain a sworn statement of what, in fact, were the husband's assets, Noel scheduled him to be deposed and subpoenaed certain related documents for use at that deposition. In response an opposing motion for a protective order was filed upon which the trial court heard evidence and eventually ordered additional discovery. Since this discovery order had not been totally complied with, Noel pursued other sources of information, particularly with regard to purchases made by Mr. Greiner of real estate at allegedly less than fair market value from his wife's father. Meetings were scheduled with accountants and financial statements were prepared. However, the disparity between the alleged assets of the husband was not resolved to the satisfaction of Noel. Accordingly, she was precluded from arranging a satisfactory property settlement between the parties. Subsequently, Mr. Greiner convinced his wife to agree to a settlement drawn up by another attorney not of record. That property settlement apparently based on the husband's allegations of his assets became the one eventually incorporated into the divorce decree entered between the parties and included an agreement that the question of attorney fees for each side would be determined by the trial judge and paid by the husband.

On January 17, 1975, Noel petitioned the trial court for an allowance of attorney fees in the amount of $25,000 based largely upon the effort spent in attempting to discover the husband's assets. The trial court heard evidence concerning the propriety of the requested fee and found $12,400 less a certain credit to be owing for services by Noel to Mrs. Greiner. Thus judgment was entered for the wife on her amended complaint for absolute divorce with the separate property settlement made part of the decree while the husband was ordered to pay the wife's attorney fees as assessed. From that order to pay fees Mrs. Greiner perfected this appeal.

Appellant as a preliminary matter contends that the trial court erred in refusing to make findings of fact with regard to its assessment of attorney fees. Relying on Ind.Rules of Procedure, Trial Rule 52(A), the husband argues that upon his request there should have been a finding of facts specially so that it could be determined on what grounds the trial court ruled.

However, the alleged abuse of discretion by the trial court in determining the amount of attorney fees focuses on the weight of evidence and the credibility to be accorded each witness. The narrowness of the issue presented in this context precludes a meaningful basis upon which special findings could have been entered in lieu of the general statement of reasons given by the trial court in its final order. Furthermore, special findings are not required except in the specific class of cases set forth in Trial Rule 52(A), Supra, or unless the parties requested them in writing prior to the admission of evidence. Lamb v. Conder (1975), Ind.App., 335 N.E.2d 625. Under such circumstances, the court was not required to make special findings of fact. Weiss v. Weiss (1974), 159 Ind.App. 231, 306 N.E.2d 120. ²

In substance then the question becomes whether the fees ordered under the circumstances were so excessive as to be unsupported by the evidence and therefore erroneous as a matter of law. In evaluating such a contention this Court is strictly circumscribed to a determination of whether there is any evidence of probative value in support of the result reached by the trial court, since it is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision will be set aside as contrary to law. Pokraka v. Lummus Co. (1952), 230 Ind. 523, 104 N.E.2d 669. Otherwise the often repeated protection accorded the fact finder, that this Court will not weigh evidence on appeal, would become a wavering standard susceptible to abuse and outside the bounds of due process.

In this context it has been held that a trial court's judgment awarding attorney fees in a dissolution action can be reversed on appeal only where a clear abuse of discretion has been demonstrated. Geberin v. Geberin (1977), Ind.App., 360 N.E.2d 41. Moreover, the fact that the same circumstances might justify a different outcome does not permit the substitution of this Court's judgment for that of the trial court. Tomlinson v. Tomlinson (1976), Ind.App., 352 N.E.2d 785. Abuse of discretion only occurs when the trial judge made an erroneous conclusion in judgment, a conclusion against logic and effect of facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Burkhart v. Burkhart (1976), Ind.App., 349 N.E.2d 707; See, Geberin v. Geberin, supra.

In the case at bar the trial court conducted a full hearing concerning the proper amount of fees to be ordered. Significantly, the evidence heard in addition to that of attorney Noel was conflicting. Several attorneys were called to testify as experts. One called on behalf of Noel testified that based on his experience in Hammond, Indiana, a percentage of the value of the property settlement could be considered as a factor in setting a fee to be charged for a divorce. He stated that this was particularly true where much of the legal work involved ascertaining the amount of property actually owned by the parties despite stiff resistance by the husband. Further, upon consideration of 91 hours of recorded work, in addition to several days in court, and obtaining the outside services of an accountant, a fee of $25,000 would be appropriate.

An attorney from Rensselaer, Indiana, while not having a present practice in Lake County, Indiana, and while qualifying himself as knowing "something about hourly rates" stated generally that $5,000 would be a reasonable fee to charge based upon $40 per hour. He further remarked that such a figure presumed that the final settlement was "actually arranged by the parties themselves" and "almost a split."

Another attorney from Hammond, Indiana, stated that $4,800 was an appropriate fee For the husband to pay based upon an hourly rate, that certain work for a wife in a divorce case should more properly be chargeable to her and that the husband should only be "chargeable with the basic underlying fee and not with any percentage of recovery in the case." In addition, however, he stated, "It is certainly . . . proper for a lawyer to charge a woman in a divorce additional fees over and above what she expects the husband to contribute." Further, "results are . . . important and a lawyer is entitled to be paid by his client an additional bonus . . . out of and from funds that are created solely through the knowledge, ability and diligence of counsel."

The Hammond Bar fee schedule was admitted over appellant's objection as evidence of a reasonable fee. The schedule would prescribe an additional fee over a certain flat rate of "15% Of net value of property recovered, gained or retained" which under the circumstances herein would be $20,650. The husband designates this admission of evidence as error on appeal relying on Goldfarb v. Virginia State Bar (1975), 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572. However, in the context of the case at bar the Hammond fee schedule could be considered some evidence of what a reasonable fee should be. ³ Casting aspersions on its presumed function in the context of Goldfarb cannot preclude its admission as relevant evidence bearing on the dispute before the trial court. Moreover, any consideration accorded such evidence goes to its weight and not its admissibility.

Thus with the testimony of three expert witnesses in addition to Mrs. Greiner and her attorney and with the evidence of the Hammond Bar fee schedule, the trial court made the following conclusions relative to the award of fees:

". . . (A)s to the issue remaining of, the question of awarding attorneys fees, the Court reviews the evidence presented today and according to the evidence only the assets show, of the defendant . . . Three Hundred and Twenty Thousand to Two Hundred and Seventy Thousand . . . . There's also evidence to show that the approximate value...