Opinion
No. 21519.
Decided February 8, 1965.
From a refusal by trial court to entertain his motion for attorney's fees with reference to action for separate maintenance, attorney brings error.
Reversed and Remanded.
1. HUSBAND AND WIFE — Separate Maintenance — Reconciliation — Attorney's Fees — Hearing — Standing — Error — Presentation of Evidence. In action for separate maintenance where parties thereafter reconciled, and on date set for hearing on temporary orders wife's attorney appeared and requested hearing on his application for attorney's fees which trial court denied on ground that reconciliation precluded it from awarding any attorney's fees, and that attorney had no further standing in instant action, held, trial court was in error.
2. Parties — Domestic Relations Action — Reconciliation — Jurisdiction — Attorney's Fees. Reconciliation of parties to domestic relations action does not deprive court of jurisdiction to award attorney's fees.
3. ATTORNEY AND CLIENT — Domestic Relations Case — Attorney's Fees — Equity — Intervenor — Standing — Other Remedy. Where client in a domestic relations case is no longer interested in whether court enters orders requiring reasonable compensation to her attorney, equity demands that he be treated as an intervenor; he does have standing to pursue his claim for attorney's fees in the domestic relations case and is not required to resort to some other remedy.
4. HUSBAND AND WIFE — Attorney and Client — Attorney's Fees — Separate Maintenance — Reconciliation. Wife's attorney had standing and right to present evidence as to what attorney's fees, if any, should be awarded him under well-established standards laid down by Supreme Court in spite of reconciliation of husband and wife after wife had filed complaint for separate maintenance.
Error to the District Court of the City and County of Denver, Hon. Mitchel B. Johns, Judge.
ROBERT LELAND JOHNSON, pro se, for plaintiff in error.
No appearance for defendant in error.
ANGELITA A. PACHECO, through her attorney Robert L. Johnson, filed her complaint in the trial court for separate maintenance against her husband Joseph E. Pacheco. At the same time, she filed a motion for temporary support for herself and her children, and for temporary attorney's fees. An application for restraining order was also heard, and the order issued. A date was set for the hearing on the temporary orders and notice of the hearing was served on the husband.
Shortly thereafter, the parties reconciled. On the date set for the hearing on the temporary orders, the wife's attorney appeared and requested a hearing on the application for attorney's fees. The trial court refused to hear the motion on the ground that the reconciliation precluded it from awarding any attorney's fees, and that the attorney had no further standing in the instant action. The trial court was in error.
[2, 3] We pointed out in Stockham v. Stockham, 145 Colo. 376, 358 P.2d 1026, where attorney's fees were awarded to the wife's attorney over the husband's objection after the parties had reconciled, that the reconciliation did not deprive the court of jurisdiction to award such fees. Under circumstances where the attorney's client, in a domestic relations case, is no longer interested in whether the court enters orders requiring reasonable compensation to him, equity demands that he be treated as an intervenor. He does have standing to pursue his claim in the domestic relations case, and he is not required to resort to some other remedy. The rationale of this doctrine is clearly demonstrated in Morrison v. Peck, 151 Colo. 83, 376 P.2d 58, and Tower v. Tower, 147 Colo. 480, 364 P.2d 565.
The attorney in the instant case had a right to present his evidence as to what attorney's fees, if any, should be awarded him under the well-established standards laid down by this Court with respect to attorney's fees in domestic relations cases.
The judgment is reversed and the matter remanded for further proceedings not inconsistent with this opinion.
MR. JUSTICE MOORE not participating.