Annette K. BEARDALL, Plaintiff and Respondent, v. Neil J. BEARDALL, Defendant and Appellant.
No. 16994
Supreme Court of Utah
April 23, 1981
425
The hеaring panel found that the conduct of the appellant violated Rule IV, Canon I, DR 1-102(A)(4), (5) and (6); Canon 6, DR 6-101(A)(1), (2) and (3); and Canon 7, DR 7-102(A)(3), (5) and (8) of the Revised Rules of Professional Conduct of the Utah State Bar.
Bаsed upon the evidence and record before us, we are of the opinion that the conduct of the appellant is in violation of the Code of Professional Responsibility in the following particulars:
- Appellant was on notice that after the application of the bonding company was approved that said approval was a nullity as neither Sirren Bybee nor James Romero was authorized to act as agents for Argonaut or licensed by the Department of Insurance to write bail bonds.
- The preparation and filing of thе performance bond with the court was not done in accordance with the standards required and expected of one licensed to practice law in the State of Utаh.
- That the representations made by appellant to the court were such that he either knew or should have known they were false, misleading and of such a nature so as to be рrejudicial to the administration of justice.
This Court concludes that truthfulness and candor are essential qualifications of character for those who practice before our courts and any lack of such as demonstrated by appellant‘s conduct, if allowed without proper restraint and punishment, would undermine our system of justice. Accordingly, the recommendation of the hearing panel and the Board of Commissioners of the Utah State Bar Association that the appellant be suspended from the practice of the law in the Stаte of Utah for a period of two months is affirmed. No evidence was presented by the respondent as to the amount of costs, therefore no costs are awarded.
STEWART, J., having disquаlified himself, does not participate herein.
SAM, District Judge, sat.
P. Gary Ferrero, Provo, for defendant and appellant.
John C. Backlund, Provo, for plaintiff and respondent.
Plaintiff initiated this proceeding pursuant to an order to show cause to enforce a provision in a decree of divorce entered in November, 1968. Thereunder, defendant was ordered “to pay any medical or dental expenses which may be incurred for medical or dental care of the two minor dаughters of the parties.” Upon hearing before the trial court, plaintiff was awarded judgment in the sum of $1,184.20. Defendant appeals challenging the award of two of the components оf that sum. The judgment is affirmed.
In this proceeding plaintiff filed an affidavit averring that defendant was in default in the payment of $3,395.24 for medical, hospital, and dental bills for the minor daughters of the parties. By stipulation the parties agreed that plaintiff had procured at her own expense medical insurance, which had covered all the medical expenses except $258.88 for doctor bills and $73.32 for prescription drugs. The latter sums had been paid by plaintiff, which defendant agreed he should reimburse. On appeal defendant concedes plaintiff should havе judgment for these expenses.
Over a period of three years plaintiff had paid $1,538.12 in premiums for medical insurance, for which she sought reimbursement. The trial court awarded her $700 as reimbursеment for insurance premiums. In addition, plaintiff was awarded $125.00 for her attorney‘s fee.
The defendant vigorously contended that the trial court could not order reimbursement for any of the insurance premiums on the basis of an order issued in 1975. In October 1975, an order to show cause was issued, averring defendant was in default in the payment of medical bills in the sum of $1,378.98. During the ensuing proceеding, plaintiff sought reimbursement in the sum of $135.00 for premiums for medical insurance paid from September 1974 through October 1975. The court ordered defendant to pay $1,250.00 to a doctor, and $45.60 to plаintiff. However, the court denied plaintiff reimbursement for the insurance premiums. The following was included in the order:
“Defendant not found responsible to provide medical insurance for thе two minor daughters of the parties.”
In the present proceeding the trial court stated that technically under the terms of the 1975 order he could not award plaintiff judgment for the insurancе premiums that she had paid. However, he could do something with respect to defendant‘s liability to pay the medical bills. The court stated:
“Well, as I indicated, I think that those premiums were аctually a necessary medical expense incurred for the children.”
On appeal defendant contends the order requiring defendant to reimburse plaintiff $700 for medical insurance is invalid. First he urges the current order modified the order of 1975, and such modification cannot be sustained inasmuch as plaintiff failed to prove a substantial change of circumstances. He further аrgues that in the absence of proof of change of circumstances, the doctrine of res judicata applies, since his responsibility to provide medical insurance had been litigated and determined by the 1975 order. Secondly, defendant contends that if the requisite proof were adduced to justify a modification, such a modification cannot be applied retroactively, which was the effect of the present order for reimbursement.
Defendant has misconstrued the order of the trial court. Medical and dental expenses in thе sum of $3,395.24 were incurred for the care of the children. Under the decree of divorce, defendant was liable for this expense. Plaintiff providently procured and paid for medical insurance which covered these expenses, with the exceptions set forth ante. This medical insurance did not redound to defendant‘s benefit and discharge his liability under the decree. The trial court, sitting as a court of equity, pertaining to its powers concerning obligations arising under a decree of divorce1 exercised its equitable powers and limited defendant‘s liability to the cost of the insurance premiums rather than ordering defendant to discharge the entire obligation for medical expenses in the sum of $3,395.24. Within this context, the trial court correctly ruled that the premiums were actually a necessary medical expense for the children.2
Defendant further contends the award of $125.00 attorney‘s fees to plaintiff cannot be sustained. Defendant cites and relies on Kerr v. Kerr3 wherein this Court stated:
“... Pursuant to statute [
Section 30-3-3, U.C.A., 1953 ] a court in a divorce proceeding is empowered to award such sums as will permit the opposing party to bring or defend the action. The decision to make such an award, together with the amount thereof, rest primarily with the sound discretion of the trial court. As with the award of alimony, however, an award of attorneys’ fеes must rest on the basis of evidence of need and reasonableness.”4
Defendant claims there was no evidence adduced as to the need of plaintiff for attorney‘s fees to enable her to prosecute this action, or the reasonableness of the amount awarded. The record does reveal that this proceeding is the third one plaintiff hаs been compelled to prosecute to enforce the medical expenses provision in the decree. Although there was no detailed presentation of faсts establishing the usual requisite factors to support an award of attorney‘s fees, the facts implicit in this proceeding and the evidence necessarily presented to the trial judge, together with the de minimis nature of the award constitute a sufficient basis to sustain the trial court‘s exercise of its discretion herein.
STEWART, HOWE and OAKS, JJ., concur.
HALL, Justice (concurring and dissenting):
I concur with the main opinion except as to its disposition of the issue of attorney‘s fees.
An award of attorney‘s fees must be based upon direct evidence adduced at trial as to: 1) need, 2) ability to pay, and 3) reasonableness of the fee to be awarded.1 As stated in the case of Butler v. Butler:2
This court has consistently held that an attorney‘s fee may not be awarded where there is nothing in the recоrd to sustain the award either by way of evidence or by stipulation of the parties as to how the court may fix it.3 [Emphasis added, citations omitted.]
I would vacate the award of attorney‘s fees.