Opinion
No. 2004AP328.
Opinion Filed: April 14, 2005.
APPEAL from a judgment of the circuit court for Dane County: SARAH B O'BRIEN, Judge. Affirmed.
Before Dykman, Vergeront and Lundsten, JJ.
Elizabeth Kohl appeals from a judgment awarding attorney fees to her former counsel in this divorce action. The issues relate to the court's authority to issue such an order, whether the order was supported by the record, and other matters. We affirm.
¶ 2 Nancy Wettersten and the firm of DeWitt Ross Stevens represented Kohl during divorce proceedings. They moved to withdraw and for a judgment against Kohl in the amount of her outstanding fee balance. The court eventually held an evidentiary hearing and awarded fees in the amount of $15,920.96.
¶ 3 Kohl first argues that the circuit court lacked competency to decide this issue. She argues that a court could enter such a judgment for fees only if authorized by WIS. STAT. § 767.23(3)(a) (2003-04), but that this statute does not apply to the facts of this case. The statute provides:
All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
Upon making any order for dismissal of an action affecting the family or for substitution of attorneys in an action affecting the family or for vacation of a judgment theretofore granted in any such action, the court shall prior to or in its order render and grant separate judgment in favor of any attorney who has appeared for a party to the action and in favor of any guardian ad litem for a party or a child for the amount of fees and disbursements to which the attorney or guardian ad litem is, in the court's judgment, entitled and against the party responsible therefor.
¶ 4 Kohl argues that the only plausible way this statute applies to this case is if a "substitution of attorneys" occurred. She argues that a substitution did not occur because the firm withdrew from representation and was not replaced by another attorney. She argues that substitution and withdrawal are distinctly different events, with the former requiring the consent of the client and the latter sometimes occurring without the client's consent. She relies partly on language from a case in which we reviewed an earlier supreme court opinion and concluded: "Thus, the supreme court strictly construed § 767.23(3)(a), Stats., to apply to those situations expressly set forth in the statute, i.e., orders for `dismissal of action affecting the family,' `substitution of attorneys in an action affecting the family,' and `vacation of a judgment theretofore granted in any such action.'" Kotecki Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 441, 531 N.W.2d 606 (Ct.App. 1995).
¶ 5 We do not regard Kotecki Radtke as setting forth a particular standard for construing this statute. The supreme court passage we were describing did not state a unique principle of statutory construction for this statute, but simply affirmed the established principle that a court's power is limited to what is set forth in the statute. Nor did our description of the supreme court's opinion as a "strict construction" alter the nature of our inquiry in this case, which is to decide whether the term "substitution of attorneys" encompasses withdrawals of attorneys.
¶ 6 We conclude that Kohl's interpretation of the statute is unreasonable. As we read the statute, it contemplates that when an attorney withdraws, the court has the authority to address attorney fees. We see no reason why the reason for the withdrawal, the client's consent or lack of consent, or the fact that no subsequent attorney assumed representation, should lead to a different result.
¶ 7 Kohl also argues that we should construe the statute as she proposes because, if the fees are allowed in this case, it will have the effect of depriving her of her constitutional right to a jury trial in the fee dispute with her former attorney, and we should avoid an interpretation that causes the statute to become unconstitutional. This argument does not alter our interpretation of the language of the statute. As for whether our interpretation makes the statute unconstitutional, Kohl does not develop this argument, and we do not address it further. See Dumas v. State, 90 Wis. 2d 518, 523, 280 N.W.2d 310 (Ct.App. 1979).
¶ 8 Kohl next argues that the evidentiary hearing was not long enough, and therefore she was denied a reasonable opportunity to dispute the fee request. This is not a basis for reversal because Kohl does not explain specifically what more she would have done if the hearing had been longer.
¶ 9 Kohl argues that the record did not support the judgment as to certain portions of the amount granted by the court. First, she argues that time billed for Roslyn Thomas should not have been charged as paralegal time because Thomas is a secretary, and the fee agreement provided that secretarial time is not charged. The trial court concluded that "many of the charges for Ms. Thomas, whether she also does secretarial work, appear to be for paralegal type services." Kohl does not dispute this analysis on appeal, and therefore we accept the finding. Second, Kohl argues that it was "unreasonable" and "absurd" for Wettersten to charge her for listening to a message left with a secretary advising counsel that Kohl was running late for a meeting. She cites no legal authority or fee agreement provision that either prevents attorneys from charging for such time, or makes it unreasonable or absurd. Third, Kohl argues that the court improperly allowed the firm to bill Kohl for the legal work it performed in connection with its motion for this judgment against her. The firm argues that this issue is raised for the first time on appeal, and Kohl does not dispute that assertion in her reply brief. We do not address the issue further. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980).
¶ 10 Finally, Kohl argues that the court lacked authority to grant the firm's request to "freeze" $15,000 worth of her assets in a particular account. This request was made after the firm sought the judgment against her, but before that matter was heard. The court granted the request. The stated authority was WIS. STAT. § 767.23(1)(h), which allows a court "during the pendency" of an action affecting the family, to prohibit either party from disposing of assets within the jurisdiction of the court. Kohl argues that this provision was intended to protect each party from adverse actions by the other, not to protect attorneys. However, no such limitation is apparent from the statutory language. Kohl also argues that the court's authority exists only up to the granting of the judgment of divorce, because after that the action is not "pending." However, at the time the court made the order in this case it had granted the divorce, but issues of custody and placement remained in litigation. Therefore, the action was still pending.
¶ 11 Finally, the firm asserts that the appeal is frivolous under WIS. STAT. RULE 809.25(3) because it lacked a reasonable basis in fact or law. We deny the request because we do not believe that every issue was frivolous. See Baumeister v. Automated Prods., Inc., 2004 WI 148, ¶ 34, 277 Wis. 2d 21, 620 N.W.2d 1 (every issue must be frivolous to award fees).
By the Court. — Judgment affirmed.