Opinion
Rehearing Denied July 31, 1973.
Page 781
Bernard D. Morley, Denver, for plaintiff-appellee.
A. Daniel Rooney, Aurora, for defendant-appellant.
DWYER, Judge.
The parties were married in 1966, and divorced by decree dated November 9, 1971. They were both employed. No children were born of the marriage, but the wife had a child by a previous marriage who resided with her. In the decree, the court retained jurisdiction on the undetermined issues of alimony, division of property, and attorney's fees, and set such matters for a hearing. While the reserved issues were pending, the parties entered into a 'Settlement Agreement' whereby they divided their property and agreed that the wife would not receive alimony. However, they could not agree on the attorney's fees and stipulated that: 'The parties shall submit the matter of whether or not the Husband shall pay all or any of the Wife's attorneys fees, and the amount thereof, to the Court for determination on March 7, 1972.'
A hearing was held on the issue of attorney's fees pursuant to the stipulation. At the hearing, it was established that the fee of the wiff's attorney for his services was $1,500 as shown by an itemized billing. The amount of this debt was not contested by the wife. The testimony further indicated that the wife had paid $350 on account for her attorney's fees. The court ordered the husband to pay $900 to the wife for her attorney's fees.
The husband filed a notice of appeal. On the basis of the wife's attorney's representation at the hearing that his fee in connection with the appeal would be $400, the court ordered the husband to pay such amount to the wife. The husband appealed both orders.
Citing Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609, the husband contends on appeal that attorney's fees should not have been awarded because there was no showing that the wife was financially unable to pay her own fees. The rule in Peercy does not apply where, as here, the attorney's fees were awarded as part of the over-all settlement.
In a recent case, Krall v. Krall, Colo.App., 504 P.2d 681, this court held that where the order providing for payment of attorney's fees was part of a property settlement which encompassed assets and debts of the parties, on review of the order, the question is not solely whether the wife had the financial ability to pay her own fees, but whether the property settlement, considered as a whole, is fair.
The court had before it the financial statements of the parties and their agreement concerning the manner of dividing their assets and debts. The award of attorney's fees in this case, when considered together with the provisions of the property settlement agreed on by the parties, does not constitute an abuse of discretion. Therefore, the order will be sustained on appeal. Miller v. Miller, 157 Colo. 213, 402 P.2d 66. The supplemental appeal relating to the award of $400 attorney's fees to plaintiff presents 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, Supra. However, the record reflects that no evidence was presented which would enable the court to ascertain the proper amount of such fees. Since the reasonable value thereof must be determined as a factual matter supported by evidence, Bock v. Bock, 154 Colo. 408, 390 P.2d 956; Watson v. Watson, 135 Colo. 296, 310 P.2d 554, and since no evidence was taken to determine the reasonable value of the services to be rendered, the award of attorney's fees on appeal cannot stand and must be reversed.
Judgment as to the award of $900 is affirmed. The award of $400 attorney's fees for the appeal is reversed 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.
SILVERSTEIN, C.J., and COYTE, J., concur.