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Baumgartner v. Baumgartner

FEBRUARY 11, 1958.




Appeal from the Circuit Court of Kane county; the Hon. MEL ABRAHAMSON, Judge, presiding in case No. 11,084; the Hon. CHARLES G. SEIDEL, Judge, presiding in case No. 11,116. Reversed and remanded with directions.


Rehearing denied March 17, 1958.

Two appeals involving the same parties, but different issues arising out of an original suit for separate maintenance and consolidated herein. The action was commenced by Dorothy Baumgartner on October 7, 1955, when she filed her complaint for separate maintenance after having secured a waiver of the waiting period. An injunction without notice or bond was issued on the same date to restrain the defendant from coming upon the premises the parties had occupied the night before as their marital domicile. Although the plaintiff's suit was found to be without equity and dismissed after protracted litigation, the court awarded the plaintiff attorney's fees in the sum of $5,000. Defendant appeals from this award and from an order of the trial court striking his supplemental cross-appeal for divorce filed by leave of court, which alleged desertion by the plaintiff. These are the issues involved in appeal number 11,084. After notice of appeal, the trial court, at plaintiff's request, allowed an additional $3,000 to the plaintiff for attorney's fees to defend the appeal. In addition, certain other awards were made to cover the expenses of the appeal. Defendant has appealed from the award of attorney's fees as being excessive, and the propriety of the attorney's fee is the only question presented in appeal number 11,116.

The issues are not unusually confusing, but due to the fact that there are two appeals and a question concerning fees being involved in each, we believe the facts in the cases should be reviewed.

On December 23, 1954, the parties were married. Their marriage was short lived and while there was testimony concerning some acts of cruelty by the defendant, the plaintiff testified that the last act of cruelty was in July of 1955, and that after these little arguments and disputes, she forgave him (the defendant) and they made up and everything was "hunky dory." Notwithstanding their pleasant relationship, the plaintiff visited lawyers on several occasions during her husband's absence at work. It would seem, that on October 6, 1955, the plaintiff consulted her present counsel and then returned to her home where she spent the night with her husband. On the morning of October 7, the defendant left for work as usual and his wife went to her lawyer's office where she signed instruments to secure authority to file instanter her complaint for separate maintenance and for a temporary injunction. This, notwithstanding the fact that she was not living separate and apart from her husband, but rather, was living with him. An order was entered granting leave to file the complaint instanter, and a temporary injunction was issued to restrain the defendant from coming about the home of the plaintiff and defendant. This home was owned by the defendant. The injunction was served on October 7, 1955.

Plaintiff's complaint alleged the necessary jurisdictional matter, the marriage, that no children were born of the marriage, and that the plaintiff had demeaned herself as a good wife. It was further alleged that the defendant has committed acts of cruelty and had made plaintiff's life miserable and embarrassing. The latest specific act of cruelty pleaded was said to have occurred in May of 1955. Plaintiff alleged that she gave the defendant no cause to treat her in a cruel manner, and alleged that the defendant was a man of great wealth. She asked for separate maintenance, attorney's fees and expenses, temporary alimony and temporary attorney's fees and an injunction. Plaintiff did not allege that she was living separate and apart from the defendant.

Defendant answered plaintiff's complaint admitting the jurisdictional matters, the marriage and that there were no children of the marriage. Defendant denied that plaintiff demeaned herself as a kind wife and alleged that plaintiff had constantly boasted that she had married him for his money. Defendant denied the general allegations of cruelty and admitted that he was not always a loving husband but alleged that his conduct was forgiven and condoned by his wife. Defendant denied that the plaintiff had given no reason for him to treat her cruelly and admitted that he had assets of great value. Defendant also alleged that he and his wife were cohabiting together; that the complaint was insufficient as a matter of law; and that the injunction was illegally issued. Defendant prayed that the plaintiff's complaint be dismissed for want of equity.

A petition for allowance of temporary alimony and attorney's fees was filed on October 28, 1955, and defendant filed his motion to strike, pleading the insufficiency of the complaint. On November 10, 1955, an order was entered awarding temporary alimony in the amount of $500 per month and temporary attorney's fees in the amount of $500 plus costs of the suit. Defendant was also ordered to pay utility bills and provide maintenance about the house occupied by the plaintiff. Thereafter, defendant filed a motion to dismiss the complaint and vacate the order of November 10, 1955, and on the 18th day of November, this motion was continued generally on the court's own motion. Later an agreed order awarding temporary alimony and attorney's fees was entered providing for alimony in the amount of $350 per month retroactive to November 1, 1955, plus a payment of $525 to be made before December 10, 1955, a payment of $175 to be made before December 15, 1955, and $350 each month thereafter. Plaintiff was awarded $500 for her temporary attorney's fees and defendant was ordered to pay for outside maintenance of the home of the plaintiff and for plaintiff's utilities.

Numerous motions were filed during the pendency of this litigation with motions to strike following. As an example of the intense feeling between the parties when the husband petitioned for a modification of the injunction so as to secure personal items from the house, the wife countered with a demand for more money from her husband to replace the items requested by the husband.

At the conclusion of the hearing, June 22, 1956, on the issues joined by the original complaint for separate maintenance and the answer thereto, the court continued the cause for final arguments. By leave of court, plaintiff filed an amended complaint for divorce on October 9, 1956 to which defendant filed an answer. At the same time defendant obtained leave of court and filed a supplemental cross-complaint for divorce alleging desertion. Plaintiff filed a motion to strike defendant's supplemental cross-complaint for divorce. The defendant in his supplemental cross-complaint for divorce alleged that the plaintiff was guilty of wilful desertion for more than one year in that she filed an action for separate maintenance while living with the defendant and without cause and obtained an injuncand kept the injunction in force and refused to live and cohabit with the defendant for more than one year.

Plaintiff's motion to dismiss the supplemental cross-complaint was allowed and the supplemental cross-complaint for divorce was stricken. This action of the trial court is assigned as error.

Subsequently, on March 15, 1957, plaintiff's complaint for separate maintenance and amended complaint for divorce were found to be without merit and dismissed for want of equity and the injunction heretofore issued dissolved.

On the question of the attorney's fees, evidence was offered to the effect that plaintiff's counsel had rendered professional services totaling about 96 hours from October 6, 1955, to November 7, 1956. There was opinion testimony that the reasonable customary and usual charge in Kane county for similar services was $5,000. On cross examination it was brought out that the minimum charge in Kane county was $15 to $20 per hour, and that on the basis of this rate, the minimum charge would not exceed $2,000.

Testimony concerning a reasonable fee for plaintiff's attorneys to defend the appeal was also offered. The same attorney who testified that $5,000 was a reasonable fee for the trial of the separate maintenance action testified concerning a fee to defend the appeal. He stated he was familiar with the case, that 100 hours would be consumed in the appeal and that one day would be spent in the Appellate Court on argument. He testified that a reasonable fee would be $40 per hour and $250 for the appearance in the Appellate Court. The court allowed a fee of $3,000 for the plaintiff's attorneys ...

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