388 Mass. 652 | Mass. | 1983
Glenna and Charles Borgarello were divorced by a judgment nisi on August 25, 1981. The judgment provided that the parties were bound by an agreement dated August 25, 1981, which was merged in the judgment and was to have no independent legal significance. The agreement provided that each of the parties would pay his or her own legal fees and that the fees would be set by a judge of the Barnstable County Probate and Family Court. Counsel for Charles filed a motion in his own name that his
The Probate and Family Court lacks jurisdiction to render a judgment that a party to a divorce proceeding must pay his or her own counsel fees and expenses in an amount to be set by a judge of that court. Subject matter jurisdiction cannot be conferred by the parties, Litton Business Syss. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981); Dennis v. Dennis, 337 Mass. 1, 4 (1958), and it is not conferred by G. L. c. 208, § 38.
General Laws c. 208 governs divorces. General Laws c. 208, § 38, provides that in any proceeding under c. 208 the court may award costs and expenses, or either, to either party, and it further provides that these costs and expenses may be awarded to his or her counsel. House v. House, 368 Mass. 120, 122 (1975). Costs and expenses include counsel fees. Sack v. Sack, 328 Mass. 600, 605 (1952). Hayden v. Hayden, 326 Mass. 587, 594 (1950). Section 38 of G. L. c. 208, like §§ 34, 34A, 34B, 34C, 35, 36, 36A (added by St. 1982, c. 481, § 1), and 37, which provide as to alimony, is designed to allocate resources fairly between the parties to
The effect of the judgment provision that each of the parties would pay his or her own legal fees was to preclude the application of G. L. c. 208, § 38, absent subsequent grounds for modification. As a result, the amount of the fee is to be determined by the application of ordinary contract principles, see Sack v. Sack, supra at 605, Hayden v. Hayden, supra at 596, and judicial resolution cannot be by judgment of the Probate and Family Court, which lacks jurisdiction over such matters.
There is an additional reason why the judgment cannot stand without modification. The procedure for setting fees pitted lawyer against client. There was an inherent conflict between their interests in the amount of the fee. In his effort to persuade the judge that his fee was fair, the lawyer could not represent Glenna, whom he was charged to represent, and she was left unrepresented in that regard. No justification is afforded by Glenna’s agreement that the judge determine her counsel’s fee, concerning which she had no independent advice of counsel. We reverse the judgment in so far as it orders that Glenna’s counsel fees and expenses shall be in an amount to be determined by a judge of the Probate and Family Court. In all other respects the judgment is affirmed.
So ordered.