Opinion
Epstein, Epstein & Lozow, Frederick Epstein, Gary Lozow, Denver, for plaintiff-appellee.
Robert L. Pitler, Denver, for defendant.
COYTE, Judge.
Defendant (husband) appeals from an award of attorney's fees in a divorce action and from an additional award of attorney's fees in pursuance of this appeal.
A decree of divorce was granted to the plaintiff on January 9, 1970. Hearing on permanent orders concerning, Inter alia, attorney's fees was held on April 21, 1970, and an order was entered without mention of attorney's fees. After a subsequent appearance before a different judge, an order was entered on June 11, 1970, awarding plaintiff $350 in attorney's fees. Defendant filed a motion for new trial on June 12, 1970, which was heard and denied on August 26, 1970. Notice of appeal was filed on September 28, 1970. On October 20, 1970, plaintiff filed a motion for and was allowed additional attorney's fees in the sum of $500 for the purpose of defending against the appeal. Defendant subsequently supplemented his notice of appeal to contest the additional $500.
According to his initial notice of appeal, defendant is appealing an order of August 26, 1970. The time allowed for appeal from the order of August 26, 1970, expired before the notice of appeal was filed. C.A.R. 4(a).
Since the record on appeal does not contain a timely appeal from a final judgment, the appeal from the award of $350 attorney's fees must be dismissed. Chapman v. Miller, 29 Colo.App. 8, 476 P.2d 763.
The supplemental appeal relating to the additional $500 attorney's fees is properly presented to this court. The award of attorney's fees is a matter resting within the sound discretion of the trial court, and if there is evidence to support the award it will be upheld. Miller v. Miller, 157 Colo. 213, 402 P.2d 66. However, the record reflects that no evidence was taken to ascertain the proper amount of such fees. The reasonable value thereof must be determined as a factual matter supported by evidence. Watson v. Watson, 135 Colo. 296, 310 P.2d 554. Since no evidence was taken to determine the reasonable value of the award it cannot stand.
The appeal is dismissed as to the award of $350 attorney's fees for trial and reversed as to the $500 attorney's fees award for the appeal, with directions that the trial court hold a hearing and determine on evidence presented the proper amount of attorney's fees, if any, to be awarded because of the appeal.
PIERCE and SMITH, JJ., concur.