PUBLISHED OPINION
Case No.: 94-3425
Complete Title
of Case:
In re the Marriage of:
PATRICIA ANN JOHNSON,
Petitioner-Respondent,
v.
BRUCE HINTON JOHNSON,
Respondent-Appellant.
______________________________________________________________________________
Submitted on Briefs: November 20, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: January 17, 1996
Opinion Filed: January
17, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Fond du Lac
(If
"Special", JUDGE: HENRY B. BUSLEE
so indicate)
JUDGES: Anderson, P.J., Brown and Nettesheim, J.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the respondent-appellant, the cause was
submitted on the briefs of Michael S. Heffernan of Foley & Lardner
of Madison.
Respondent
ATTORNEYSOn behalf of the petitioner-respondent, the cause was
submitted on the brief of Lee F. Clavey and Amy L. Shapiro of Calvey,
Lara & Shapiro, S.C. of Milwaukee.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED January
17, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3425
STATE OF WISCONSIN IN
COURT OF APPEALS
In re
the Marriage of:
PATRICIA
ANN JOHNSON,
Petitioner-Respondent,
v.
BRUCE
HINTON JOHNSON,
Respondent-Appellant.
APPEAL
from a judgment of the circuit court for Fond du Lac County: HENRY B. BUSLEE, Judge. Affirmed in part; reversed in part and cause
remanded with directions.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
NETTESHEIM,
J. In this divorce case, Bruce Hinton Johnson
contends that the family court erred by:
(1) allowing Bruce's counsel to withdraw from the case six days before the
trial; (2) precluding him from presenting all his evidence; and (3) awarding
$35,000 in “overtrial” attorney's fees to his former spouse, Patricia Ann
Johnson.
We
conclude that Bruce was given reasonable advance notice of his counsel's
intention to withdraw and that he was not precluded from presenting his
evidence. However, we further conclude
that the family court erred by failing to first determine the reasonableness of
Patricia's attorney's fees before making the attorney's fees award. We therefore reverse the attorney's fees
portion of the judgment, and we remand for further proceedings on that limited
issue.
Background
The
parties were married on August 24, 1968.
On December 27, 1991, Patricia filed for divorce. Bruce is a dentist whose income exceeded
$100,000 in each of the four years preceding the divorce. During the marriage, Bruce had exclusive
control over the family's financial matters and did not take a regular salary,
but took funds out of his dental practice receipts as they became available. Patricia is a registered nurse; however, she
had not been actively employed in her profession since 1983 due to a
degenerative disease of the lower lumbar disc in her back. At the time of the divorce, Patricia was
unemployed and had no earned income.
During the pretrial phases of the divorce,
both Bruce and Patricia changed attorneys.
When the action was commenced, Patricia was represented by Attorney
David Nichols, and Bruce was represented by Attorney John Zacherl. In September 1992, Patricia retained
Attorney Lee Calvey, and in November 1993, Bruce retained Attorney Diane
Diel. Diel began experiencing
difficulties with Bruce, and in April 1994, she sought to withdraw her
representation of him. Shortly
thereafter, she transferred portions of his file to another attorney. Six days before the case was scheduled to go
to trial in June 1994, the trial court held a hearing and permitted Diel to
withdraw.
Bruce
did not obtain an attorney to represent him at either the withdrawal hearing or
the divorce trial. He appeared at both
proceedings pro se and testified at each on his own behalf.
In
its written decision after considering the parties' posttrial briefs, the
family court determined, inter alia, that Bruce had engaged in overtrial. The court detailed the protracted history of
the case and found that because of Bruce's conduct during the proceedings,
“[Patricia] incurred legal expenses far in excess of what reasonably would
otherwise have been incurred.” The
court ordered Bruce to pay $35,000 of Patricia's attorney's fees.
Bruce
appeals. We will recite additional
facts as we address the appellate issues.
Discussion
Withdrawal of
Counsel
Bruce
first argues that the trial court misused its discretion when it allowed his
attorney to withdraw from the case six days before the scheduled trial
date. He maintains that although there
may have been sufficient grounds for the withdrawal, the trial court failed to
consider his “ability to obtain new counsel or his ability to represent himself
adequately.” We disagree.
The
circumstances under which an attorney may withdraw from the representation of a
client are governed by Supreme Court Rule.
See SCR 20:1.16 (West 1996).
The general rule is that although a lawyer has justifiable cause for
withdrawing from a case, the attorney is not entitled to withdraw until the
client has been given “reasonable notice and opportunity to obtain substitute
counsel.” Sherman v. Heiser,
85 Wis.2d 246, 251, 270 N.W.2d 397, 399 (1978). Thus, Bruce's ability to obtain substitute counsel or to
adequately prepare for trial was dependent upon whether he was given such
reasonable notice.
On
June 21, 1994, Diel stated at the withdrawal hearing that she did not
communicate well with Bruce and that he had become hostile and antagonistic
towards the advice she had given him.
Diel stated that she had notified Bruce in April 1994 of her desire to
withdraw from the case. In May 1994, Bruce
contacted Diel and asked her to prepare a stipulation and order for substitution
of counsel. As a result, Diel had
numerous discussions with an alternate attorney and even transferred portions
of the file to the new attorney.
Although the documents were already signed by Diel, Bruce never went to
the new attorney's office to sign them.
Bruce
arrived late at the withdrawal hearing.
He entered as the trial court was announcing that the matter would
proceed to trial as scheduled on June 27, 1994. When the trial court asked Bruce if he had any remarks, he
responded, “Well, I came here to say that I wish that [Diel] would not dismiss
herself from the case. That is all I
have to say.” Bruce did not complain to
the trial court that he had not received adequate notice of Diel's desire to
withdraw.
In
response to Bruce's comment, the trial court recounted the protracted history
of the case, including the prior notice provided to Bruce by Diel of her
intention to withdraw. The court
observed that the Johnsons' divorce case had been pending for more than two
years, and Bruce was well aware of the June 27, 1994, trial date. As early as April 1994, Bruce received
notice of Diel's desire to withdraw, and in May, Bruce himself asked Diel to
transfer his file to another attorney.
Based on this record, together with Bruce's failure to squarely raise
the issue he now asserts on appeal, we see no misuse of discretion by the trial
court in allowing Diel to withdraw.
Bruce
argues, however, that this case is akin to Sherman and that the
trial court erred by failing to consider the option of postponing the
trial. We disagree for two
reasons. First, as we have noted, Bruce
failed to ask the family court for this relief. We generally do not review issues raised for the first time on
appeal. Lenz Sales & Serv. v.
Wilson Mut. Ins. Co., 175 Wis.2d 249, 257, 499 N.W.2d 229, 232 (Ct.
App. 1993). Thus, Bruce's argument is
waived.
Second,
on the merits, this case is not factually like Sherman. There, the trial court permitted counsel to
withdraw on the day of trial when the client failed to appear. The supreme court reversed this ruling
because the client had not received prior notice of the intent to
withdraw. Sherman, 85
Wis.2d at 256, 270 N.W.2d at 401. Under
those circumstances, the court said that the trial court had two options: (1) adjourn the proceeding, or (2) deny the
withdrawal request. Id.
at 255-56, 270 N.W.2d at 401. The
supreme court pointedly noted in Sherman that it was reversing
“under the facts in this case.” Id.
at 251, 270 N.W.2d at 399. Here, as we
have already demonstrated, Bruce had received adequate advance notice of his
attorney's intent to withdraw. Sherman
does not govern this case.
Fair Trial
Next,
Bruce argues that the trial court denied him the right to a fair trial when it
interrupted his narrative testimony and did not give him the opportunity to
develop his case. We have independently
examined the trial court record and briefly summarize what occurred.
Before
Bruce testified, the trial court summarized for him the evidence that had been
presented by Patricia regarding the valuation of the Johnsons' property. The court explained that the issues before
the court were the division of the parties' personal property and Patricia's
maintenance request. The court also
clarified for Bruce that because their children were adults, there were no
support issues. By these remarks, the
court explained the issues to which Bruce should direct his testimony and
evidence. The court then instructed
Bruce to testify in narrative form.
Bruce
then proceeded to testify on the property division and maintenance issues. He indicated that except for a few items, he
had no objection to the property division.
However, Bruce stated, “I don't know how I can pay any
maintenance.” He attributed his
inability to pay maintenance to his numerous financial difficulties. During his testimony, the trial court
stopped Bruce to explain how the court would calculate the figure to be used to
determine maintenance. The court asked
Bruce to confirm whether his position was that he was “unable to pay any
maintenance,” to which Bruce responded affirmatively. The court then indicated that it had completed its questioning,
and directed Patricia's counsel that he could cross-examine Bruce.
At
no time before or after the cross-examination did Bruce interpose to inform the
court that he had not finished presenting his case or that he had more to
say. When the cross-examination was
completed, the next witness was called, and the record reveals no objection by
Bruce. If Bruce had additional evidence
to offer, it was his responsibility to so notify the court. He did not.[1]
Attorney's
Fees
Finally,
we address Bruce's argument that the trial court misused its discretion in
awarding $35,000 in attorney's fees to Patricia as a result of overtrial.[2] Bruce maintains that he should have been
given “formal notice of the overtrial charges and a separate hearing on the
issue.” He also contends that the trial
court erred by failing to make findings as to Patricia's need, Bruce's ability
to pay and the reasonableness of the fees.[3]
We
first reject Bruce's contention that an overtrial hearing must be conducted as
a separate hearing with formal advance notice.
So long as the issue of overtrial is raised at trial or in posttrial
briefs and the opposing party is given a reasonable opportunity to respond, we
conclude that no formal motion hearing is necessary.[4] In this case, Patricia argued in her
posttrial brief that she had been forced to incur substantial additional
attorney's fees because of Bruce's conduct during the course of the
proceedings. Although Patricia did not
use the word “overtrial,” that was the substance of her argument. Bruce had full opportunity to address this
claim.
We
next address Bruce's argument that the trial court failed to make the proper
findings. The award of attorney's fees
is within the discretion of the trial court and is subject to reversal only
upon the trial court's misuse of that discretion. See Ably v. Ably, 155 Wis.2d 286, 293, 455
N.W.2d 632, 635 (Ct. App. 1990). The
trial court must normally address three factors when awarding attorney's
fees: (1) the spouse receiving the
award needs the contribution, (2) the spouse ordered to pay has the ability to
do so, and (3) the reasonableness of the fee.
Id.
When
attorney's fees are sought in an overtrial situation, however, this court has
previously stated that there is no need to make findings of need and ability to
pay. Ondrasek v. Ondrasek,
126 Wis.2d 469, 484, 377 N.W.2d 190, 196 (Ct. App. 1985). The policy underpinning an overtrial
attorney's fees award is to compensate the overtrial victim for fees
unnecessarily incurred because of the other party's litigious actions. See id. Bruce's argument, if adopted, would gut this
policy.
However,
we agree with Bruce that the family court must still determine the
reasonableness of the fees. A trial
court's factual determination that an attorney's fee is reasonable provides
guidance in determining a reasonable contribution. See Holbrook v. Holbrook, 103 Wis.2d 327,
343, 309 N.W.2d 343, 351 (Ct. App. 1981).
It
appears that the family court initially recognized the necessity for passing on
the reasonableness of Patricia's attorney's fees because, at the close of the
evidence, the court directed Patricia's lawyer to submit a detailed statement
regarding his fees. Patricia's
attorney, however, failed to do so.[5] Nonetheless, the court ordered Bruce to pay
$35,000 of Patricia's approximate $50,000 attorney's fees.[6] Without a determination of the actual fees
incurred and whether they were reasonable, this court cannot review the
reasonableness of the contribution, whether it be a conventional contribution
order or one based on overtrial. See
id. at 344, 309 N.W.2d at 351.
We
therefore conclude that the trial court erred when it awarded Patricia $35,000
in attorney's fees without first determining the reasonableness of the
fees. While Ondrasek does
not require the trial court to determine need or ability to pay in an overtrial
situation, the case does not eliminate the trial court's obligation to ensure
that the total fees are reasonable. We
therefore reverse that portion of the judgment awarding $35,000 in attorney's
fees to Patricia. We remand the case to
the trial court with directions to conduct further proceedings on this
question.
Costs
are not awarded to either party.
By
the Court.—Judgment affirmed in
part; reversed in part and cause remanded with directions.
[1] Bruce also
complains that he did not call any other witnesses and that, other than his
financial disclosure statement, there “was no organized attempt, either by
documentary evidence or by testimony, to trace [his] dental practice
income.” We are unclear whether this is
an offshoot of the issue we have just discussed or a separate, discrete issue. Regardless, these failings must be laid at
Bruce's doorstep, not the trial court's.
The trial court's rulings are supported by the evidence that was
presented.
[2] Actually, the
trial court awarded a total of $38,500 in fees to Patricia. Bruce does not dispute $3500 of this amount
which pertained to a pretrial contempt motion.
[3] We do not read
Bruce's argument to challenge the family court's threshold determination that
Bruce was guilty of overtrial.
[4] This is not to
say that the family court may not conduct a formal hearing on the overtrial
claim.