Mailer v. Mailer

• Decision Date: 08 November 1983
• Citation: 455 N.E.2d 1211,390 Mass. 371
• Parties: Beverly Rentz Bentley MAILER v. Norman K. MAILER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1211

455 N.E.2d 1211

390 Mass. 371

Beverly Rentz Bentley MAILER v. Norman K. MAILER.

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued Sept. 13, 1983.

Decided Nov. 8, 1983.

Gerald L. Nissenbaum, Boston, for plaintiff.

Monroe L. Inker, Newtonville, for defendant.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

A judgment of divorce nisi in favor of Beverly Rentz Bentley Mailer against Norman Mailer, the defendant, was entered on March 21, 1980. The plaintiff appealed to the Appeals Court and we transferred the case to this court on our own motion. There are two issues for appellate review arising out of this divorce: (1) the denial of the plaintiff's motion to disqualify Attorney Monroe L. Inker as counsel for the defendant, and (2) the provision for spousal support and medical insurance for the plaintiff. Perceiving no error on either issue, we affirm the judgment.

From the judge's findings of fact in the divorce proceeding, we learn that the plaintiff and the defendant were married on December 28, 1963, and separated in the summer of 1970. Two children, born in 1964 and 1966, were the fruits of the marriage. The plaintiff had been an actress with more than moderate success before the marriage and the defendant was and continues to be a writer of substantial acclaim.

1. Disqualification of Mr. Inker. The plaintiff consulted Mr. Inker in his office in June, 1973, concerning a divorce from the defendant. She furnished certain information to Mr. Inker's secretary, who prepared an interoffice form (domestic relations interview sheet) which Mr. Inker examined before or during his interview with the plaintiff. This form contained little more than some vital statistics pertaining to the plaintiff and the defendant, and an identification of the parties' real estate, mortgages, and investments. The interview lasted approximately one hour. Mr. Inker told the plaintiff that if she wished him to represent her, she had to prepare her life history for him and pay him a retainer of $2,400.

That interview marked the first and only meeting of Mr. Inker with the plaintiff until October 23, 1978, when a hearing commenced on the plaintiff's motion to strike the appearance of Mr. Inker for the defendant. The plaintiff in July, 1974, retained the attorneys who represented her throughout the trial.

We are without the benefit of findings of fact from the trial judge who heard the testimony of the plaintiff and Mr. Inker at the hearing on the motion to strike. However, the record includes the motion for an evidentiary hearing filed by Mr. Inker, a transcript of the evidence, and an affidavit of the plaintiff.

The judge could have found, because the plaintiff admitted, that she consulted Mr. Inker "to learn something about Massachusetts divorces and the procedure for getting a divorce in Massachussetts," and that Mr. Inker explained the procedure for making attachments of real estate. The plaintiff gave Mr. Inker a copy of a June 15, 1973, article in the Boston Globe newspaper about the defendant's presence at a college reunion accompanied by a woman to whom the defendant referred as his fifth wife. The plaintiff said that she did not retain Mr. Inker because his exposition of the law of attachments frightened her and she did not want a "sensational case for the sake of [her] children and for the sake of [her] husband." The plaintiff admitted that she could not recall all that she had told Mr. Inker but she remembered telling him about her conduct as a wife and mother and the defendant's conduct toward her over several years and his earnings as an author. Mr. Inker denied that the plaintiff had told him about her life with the defendant as a wife and mother of their children or about the defendant's conduct during the marriage. Mr. Inker testified that he did not discuss grounds for divorce with the plaintiff except in connection with the newspaper article's reference to the defendant's "fifth wife" and the "adulterous conduct" which might be proved from the defendant's admission in this regard.

We would have been assisted if the judge had made findings of fact. See Fullmer v. Harper, 517 F.2d 20, 21-22 (10th Cir.1975). The evidence is reported and we shall invoke the rule that the judge's decision imports every finding essential to sustain it if there is evidence to support it. We think that there was such evidence. See Atwood v. First Nat'l Bank, 366 Mass. 519, 522, 320 N.E.2d 873 (1974). But see Schrottman v. Barnicle, 386 Mass. 627, 638, 437 N.E.2d 205 (1982) (failure to make findings requires remand where legal standard applied cannot be discerned).

On the merits of the disqualification, the question is close. We are faced with the problem of reconciling the right of a person to counsel of his choice on the one hand, and the obligation of "maintaining the highest standards of professional conduct and the scrupulous administration of justice," on the other. Hull v. Celanese Corp., 513 F.2d 568, 569 (2d Cir.1975). In a different disqualification context, we have said that the right of a litigant to counsel of his choosing is not absolute and cannot always predominate. McCourt Co. v. FPC Properties, Inc., 386 Mass. 145, 151, 434 N.E.2d 1234 (1982). The plaintiff consulted Mr. Inker. She furnished some information to him on the client history form and orally communicated more information. That she did not pay Mr. Inker a fee is not conclusive as to the existence of the attorney-client relationship. Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1317 (7th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978). To argue, as the plaintiff does, that a fiduciary obligation results whenever a preliminary consultation occurs begs the question whether an attorney-client...