Wallace v. Briggs
| Decision Date | 19 July 1961 |
| Docket Number | No. A-8394,A-8394 |
| Citation | 162 Tex. 485,348 S.W.2d 523 |
| Parties | W. F. WALLACE, Sr., Relator, v. Hon.Cullen W. BRIGGS, District Judge, et al., Respondents. |
| Court | Texas Supreme Court |
Lyman & Sudduth, Corpus Christi, for relator.
Matthews, Nowlin, Macfarlane & Barrett, San Antonio, King, Anderson & Porter, Corpus Christi, for respondents.
The relator prays for a writ of mandamus to the Honorable Cullen W. Briggs, Judge of the 117th Judicial District of Nueces County, requiring him to rescind an interlocutory order in a divorce suit entitled Mary Ethel Pope Wallace v. W. F. Wallace, Sr. that commanded relator Wallace to pay over to respondent wife the sum of $10,500 for attorneys' fees and $1,300 for future expenses that may be incurred by her in the prosecution of this divorce action.
Mrs. Wallace filed suit for divorce on or about October 2, 1960. On the following day a temporary restraining order was issued in the usual form enjoining the defendant husband, W. F. Wallace from disposing of any of the community assets and from threatening or communicating with the plaintiff at any time and place. Thereafter, temporary injunction was granted continuing in force the matters enjoined in the restraining order, ordering an inventory and appraisement and awarding to the plaintiff the sum of $1,000 per month as temporary alimony.
Mrs. Wallace then filed a motion asking that there be set aside to each of the parties the sum of $50,000 from the community assets for the purpose of fees and the allowance for future expenses, the court proceeded to receive testimony as to those matters. He then ordered that W. F. Wallace pay over to Mrs. Wallace forthwith the following sums: $805 for expenses incurred by her to the date of this hearing; $1,300 for expenses to be incurred by her in the future in the prosecution of this case, and $10,500 for attorneys' fees incurred for services to date.
The attorneys' fees allowed consisted of the following
To the firm of Barlow, Bland & Rehmet $1,500.00
To the firm of King, Anderson & Porter of Corpus Christi 3,500.00
To Burcham Budd of Dallas, an attorney specializing in tax
matters 3,000.00 and
To W. F. Wallace, Jr., the son of the plaintiff and defendant
for advice and consultation, attorney's fees in the sum of 2,500.00
It appears that at the present time none of these are presently attorneys of record, both of the named firms having withdrawn from the case.
William R. Anderson who represented Mrs. Wallace at this hearing testified that a reasonable fee for his services up to the time of the hearing was $3,500; that the value of Mr. Bland's services for the time and work he devoted to the case and who had theretofore withdrawn, was reasonably worth the sum of $1,500. Mr. Anderson also testified that it was necessary to employ an attorney to render advice in respect to tax problems that would arise; that Mr. Burcham Budd of Dallas had been retained for that purpose and that the reasonable value of Mr. Budd's services would run from $2,500 to $3,000. It is not clear whether that fee was claimed for services that had been rendered or were to be rendered in the future. However, Mr. Budd had sent in no statement for his services and Mr. Anderson had no idea of how much time Mr. Budd had spent on the case.
W. F. Wallace, Jr. testified that he was his mother's personal attorney and had consulted with Mr. Bland and Mr. Anderson and Mr. Budd, and had devoted some time every day since October 1, 1960, in connection with her business. He claimed that a conservative estimate of the value of his services since October 1st would be $2,500. The witness also testified that he would probably be compensated by his mother if she wanted to pay him, otherwise he would not be.
Wallace, Jr. also denied that his mother had employed him as an attorney in the case, but that she employed him as a general attorney and he was counseling and working with the attorneys handling the divorce case for her; that he was not 'her counselor for the divorce'.
The court predicates his authority to enter this order upon the provisions of Art. 4636, Vernon's Ann.Civ.Stat., which reads:
'Pending suit for a divorce the court, or the judge thereof, may make such temporary orders respecting the property and parties as shall be deemed necessary and equitable.'
That article has been construed to confer the power upon the trial court to make such temporary orders as to appoint a receiver to take charge of the property, to award temporary custody of children, to direct the filing of an inventory and appraisement, to set apart the homestead for the temporary use of the wife and children, to award temporary alimony and the like. But the order here entered is in no sense temporary in its nature. It fixes the payment of attorneys' fees for past services rendered to date of the hearing, and as to that matter is final and conclusive. We know of no such authority vested in the trial court by either statute or usage.
The court has the power on the final disposition of the case to award attorneys' fees to the wife, the reasonableness of which are to be determined by the trier of the facts, and they are then entered as a part of the final judgment. Even then there is no authority for the judge to summarily order them paid or attempt to enforce that order by contempt proceedings.
In support of her contention that the judge has the authority to order the payment of these attorneys' fees by summary action and in advance of the trial, Mrs. Wallace cites Hendry v. Hendry, Tex.Civ.App., 238 S.W.2d 821, no writ history, as 'probably the closest case in point'. This was a divorce suit in which a receiver had been appointed to take charge of the community property. On the plea of the husband that he was an invalid and in destitute circumstances, the court directed the receiver to pay over to him out of the moneys on hand of the community estate the sum of $200 and to pay a like...
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