Valparaiso Bank & Trust Co. v. Sims

• Decision Date: 29 March 1977
• Docket Number: No. AA--386,AA--386
• Citation: 343 So.2d 967
• Parties: The VALPARAISO BANK & TRUST COMPANY, as Administrator C.T.A. of the Estate of Coleman L. Kelly, Deceased, Appellant, v. Mattie M. SIMS, Appellee.
• Court: Florida District Court of Appeals

Page 967

343 So.2d 967

The VALPARAISO BANK & TRUST COMPANY, as Administrator C.T.A. of the Estate of Coleman L. Kelly, Deceased, Appellant, v. Mattie M. SIMS, Appellee.

No. AA--386.

District Court of Appeal of Florida, First District.

March 29, 1977.

Johnny A. Fortune, Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellant.

Louis K. Rosenbloum and R. P. Warfield of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.

SMITH, Judge.

The Valparaiso Bank, administrator of the estate of Coleman L. Kelly, deceased, appeals from an order of the Okaloosa County circuit court awarding appellee Mattie (Kelly) Sims, former wife of the decedent, $50,000 for the payment of fees for the services of her lawyer in this divorce proceeding, which antedates Florida's no-fault marriage dissolution law. The divorce judgment was entered in June 1971, incorporating an agreement of the parties settling the money and property disputes and retaining jurisdiction 'for the purpose of awarding attorneys' fees, if any.' The parties and their counsel then became occupied with continuing disputes over the parties' substantial properties, and so postponed resolving the fee question. Mr. Kelly died in September 1973 and the Valparaiso Bank was substituted as a party defendant in the divorce proceeding in July 1974. In November 1975, following an evidentiary hearing, the order now before us was entered. The Bank urges that an award on account of fees is improper in the circumstances and that $50,000 is excessive.

Mrs. Kelly engaged her lawyer, Richard P. Warfield, in 1968. Her divorce suit against Mr. Kelly was then pending but inactive. The agreement between Mr. Warfield and his client concerning compensation was:

'Our fee . . . will be a total of $1,500.00 plus our costs and expenses. At the trial, if the cases reaches that point, we will ask the Court to fix an attorney's fee to be paid by Mr. Kelly, which is customary in Florida. If the Court requires this to be done and when the fee is paid by Mr. Kelly, we will reimburse you the amount you have paid on our fee; assuming, of course, that the Judge fixes a fee in excess of $1,500.00. If the Court should fix a fee less than $1,500.00, we will reimburse you whatever amount the court fixes so that the total attorney's fee in such case will be the $1,500.00 as herein mentioned.'

Lawyer Warfield filed an amended complaint for Mrs. Kelly but permitted it to remain inactive, in accordance with her wishes at the time, and eventually dismissed the case only to refile a new complaint in December 1970. Although Mrs. Kelly 'felt that she should have half of what they had accumulated since their marriage,' Mr. Warfield testified at the fee hearing that he considered she had only marginal claims to a special equity or some other right of participation in Mr. Kelly's 'rather large estate in Okaloosa County.' Most of Mr. Kelly's wealth, estimated at $10,000,000, was held in his name alone, and Mrs. Kelly had made no appreciable contribution to its accumulation. However, an investigator employed by Mrs. Kelly obtained 'evidence of some misconduct on Mr. Kelly's part,' characterized by Mr. Warfield as 'a great deal of evidence that I don't think Mr. Kelly wanted necessarily paraded out in a courtroom.' Thus, Mr. Warfield testified, Mr. Kelly was brought to the settlement table. There was contradicting evidence that Mr. Kelly was otherwise disposed to settling money issues as he eventually did, and his lawyer testified he advised Mr. Kelly that the potential evidence was irrelevant to the money issues.

In June 1971, as a result of negotiations largely conducted by the parties themselves, they reached a general agreement for an equal division of the wealth and for Mr. Kelley's continued trusteeship of it during his lifetime. The agreement signed June 25, 1971, which was incorporated into the final judgment on that date, contains important elements of offers and counteroffers conveyed between Mr. and Mrs. Kelly in April and May. As a result, Mrs. Kelly obtained a half interest in Mr. Kelly's assets, which were to remain in trust until 10 years after his death. She also received monthly support and exclusive use of the home.

Mr. Warfield testified at length concerning the services he rendered, the time devoted and the results accomplished by his efforts for Mrs. Kelly. He stated that he devoted at least 103 hours to the representation and that if he handled divorce cases on the basis of hourly rates, which he didn't and doesn't, he, would charge 'between seventy-five and a hundred, probably closer to a hundred dollars an hour.' The former Mrs. Kelly also adduced expert testimony to the effect that a reasonable fee for Mr. Warfield's services would be $60,000, taking into consideration the time devoted to the case, the responsibility undertaken, the services rendered, the ability and diligence required and the favorable results accomplished. Another lawyer witness, testifying for the appellant Bank, testified that a reasonable fee--taking into consideration all such factors except the results accomplished--would be $100 an hour or $10,000. Walter J. Smith, Esquire, lawyer for Mr. Kelly, charged $5,250, calculated at an average rate of $50 per hour, for services in the divorce suit and related controversies until Mr. Kelly's death.

The appellant Bank first contends the chancellor had no authority to make an award of fee money because the agreed trust arrangement placed Mrs. Kelly in exact financial parity with her husband. The purpose in awarding fee money, in both divorce and no-fault dissolution proceeding, is 'to ensure that both parties will have reasonably the same ability to secure competent legal counsel.' Mertz v. Mertz, 287 So.2d 691, 693 (Fla.2d DCA 1973). Compare Markland v. Markland, 155 Fla. 629, 21 So.2d 145 (1945). We agree it is ordinarily inappropriate to award fee money to one spouse, at the expense of the other, when the two have substantially equal ability to pay. That general rule ordinarily applies whether the parties' parity in financial ability results from the dissolution litigation or pre-existed it. Ross v. Ross, 341 So.2d 833 (Fla.3d DCA 1977); Colman v. Colman, 314 So.2d 156 (Fla.4th DCA 1975); Reinhart v. Reinhart, 291 So.2d 103 (Fla.1st DCA 1974). To be distinguished are cases sustaining fee money awards when the spouses have unequal ability to pay, though each has independent means. E.g., Kleinschmidt v. Kleinschmidt, 66 So.2d 815 (Fla.1953); Wilkerson v. Wilkerson, 179 So.2d 592 (Fla.2d DCA 1965); Turney v. Turney, 149 So.2d 83 (Fla.3d DCA 1963); Arrington v. Arrington, 150 So.2d 473 (Fla.3d DCA 1963), cert. den. 155 So.2d 615 (Fla.1963).

While discretion alone cannot overcome the rule of law, other unique factors in this case weigh in favor of the chancellor's decision to award fee money. The trust arrangement was no doubt intended, as Mr. Kelly's lawyer testified, 'to split the properties that had been acquired during the marriage down the middle,' but subsequent events alluded to in the record suggest that objective was not fully attained. Moreover, Mrs. Kelly's ability to pay a lawyer at the time of the divorce judgment or at the time of the fee hearing was not entirely clear, for the trust properties were not liquid assets in her hands. See Popeil v. Popeil, 21 Ill.App.3d 571, 576, 315 N.E.2d 629, 633 (1974). The chancellor also considered, not improperly, that fee money was granted divorced wives more readily in 1968 through 1971, when the legal services were rendered and the judgment was entered, than in 1975, when the fee issue came before the court. Finally, we recognize that a fee money award is payable by one spouse to the other as an indemnity for fees reasonably contracted for and incurred, not by one spouse to the other's lawyer, either as a debt or as a penalty. See Keena v. Keena, 245 So.2d 665, 667 (Fla.1st DCA 1971); Chaachou v. Chaachou, 135 So.2d 206, 223 (Fla.1961); Smith v. Smith, 90 Fla. 824, 107 So. 257 (1925); Kolb v. Kolb, 103 Fla. 193, 137...