Valdés v. District Court of San Juan

67 P.R. 288

• Court: Supreme Court of Puerto Rico
• Decided: May 8, 1947
• Docket: No. 1663
• Status: Published

Opinion

Mu. Justice Snyder

delivered the opinion of the Court.

A wife sued her husband for a divorce, and moved within the divorce proceeding for support. The district court granted her $200 a month for provisional support of herself and her minor son while the divorce suit was pending. Since a final judgment would terminate this provisional support, the wife filed an independent action for support of the minor child. After judgment was entered in favor of the wife in the divorce case, the independent support suit was tried. The plaintiff requested therein $200 a month for support and $500 for attorney’s fees. The lower court awarded $124.70 a month and $350 for attorney’s fees.

The controversy before us involves the provision of $350-for attorney’s fees. The district court found that the father-had not been rash and that the plaintiff was therefore not entitled to attorney’s fees pursuant to §327 of the Code off Civil Procedure as amended by Act No. 94, Laws of Puerto' Eieo, 1937. But the lower court nevertheless awarded attorney’s fees of $350 on the theory that, without reference to § 327, attorney’s fees of a minor incurred in suing a parent for support are a part of such support under § 142 of the Civil Code. We granted certiorari to determine if the district court was authorized to grant attorney’s fees to the-plaintiff despite its finding that the father had not been rash..

The petitioner argues that § 142 does not specifically provide for attorney’s fees and that to include them as part, of support amounts to judicial legislation.¹ It may be conceded that the matter would be clearer if our Legislature out of an abundance of caution had as in some states specifically provided that attorney’s fees shall be considered as part of support in such cases. Nevertheless, we are of the view that the language of our statute is sufficiently comprehensive' to include as part of support attorney’s fees which are incurred when a minor- is compelled to sue a parent for maintainance and support. To hold otherwise would he to impair substantially, the support to which a minor is entitled under the statute.

We have held that the provision of §. 100 of the Civil Code for support of a wife while a, divorce suit is pending includes her attorney’s fees. Wolkers v. Masson, 26 P.R.R. 162, 27 P.R.R. 259; Carballo v. Rossy, District Judge, 27 P.R.R. 855. We,do not agree with the petitioner that these cases are distinguishable because (1) the husband is the administrator of, the conjugal property, (.2) the support contemplated by § 100 is only provisional and (3) it is, incidental to the main divorce suit rather than as here, an independent .action. If the attorney’s fees of a wife .seeking to obtain provisional support within a divorce case are part of her maintenance, a fortiori attorney’s fees, to compel permanent support² of a child in an independent-suit are ,a part of such support. In both cases the fees are, expenses included within support because of the conduct of the defendant in compelling the-plaintiff to sue therefor. Reasonable attorney’s fees to pay for such a suit are just.as much a part of. support as reasonable expenses for maintenance, housing or clothing. See Campbell v. Campbell, 20 S.E.(2d) 237 (S.C. 1942); Arais v. Kalensnikoff, 74 P.(2d) 1043, 1047 (Cal. 1937).

We wish to make it clear that the function of this writ of certiorari is exhausted by o.ur ruling that the district court is authorized under § 142 of the Civil Cods to require the defendant to pay the attorney’s fees of the plaintiff, as a part of support even if- the defendant was not rash in defending the suit.

At the oral argument counsel discussed a 'different question: whether the attorney’s fees of the plaintiff fit automatically into the category of support, no matter how unreasonable the position of the plaintiff has been during the course of the litigation.³ But this is not an. appropriate proceeding in which to determine that question, either as a.matter of law or on the facts. Here only the judgment-roll is before us and it shows merely that the father was willing to pay $100, the plaintiff claimed $200, and the court awarded $124:70-a month. Only if the father persists in the appeal from this same judgment which is now pending in this Court and files a transcript of the testimony, will- we be in a position to determine whether the record shows not only that the defendant was not rash but also that the plaintiff was unreasonable in pressing the suit. After all, in close cases not only are both parties lacking in temerity but both are reasonable in litigating the questions involved. If. the latter was the situation in this case, as shown by the facts in the record, the plaintiff was entitled to attorney’s fees as part of support pursuant to § 142 of the Civil Code despite the fact that the defendant was not rash. But if in fact the position of the plaintiff was unreasonable, we would then be required to determine as a question of law whether an unreasonable claim by the plaintiff justifies reduction or elimination of attorney’s fees for the plaintiff in a suit for support of a minor. We do not reach that question in this proceeding.

The writ of certiorari will be discharged.

Mr. Justice Marrero did- not participate herein.

1 Section 142 provides as follows:

“Support is understood to be all that is indispensable for maintenance, bousing, clothing and medical attention, according to the social position of the family.

“Support also includes the education and instruction of the person supported when he is a minor.”

2 In one sense provision for support is never .permanent because, it is .always subject to modification on a showing that conditions • have changed. Ortiz v. Viera, 61 P.R.R. 495; Valdés v. Hastrup, 64 P.R.R. 569, 574. But here we speak of permanent support in. contrast to. the- provisional support which is granted pending termination of litigation.

3 Cf. the statement in Wolkers v. Masson, 27 P.R.R. 259; 261-2, that in a ease involving a wife the lawyer "who represents• her is entitled, to pay for his services even if he loses the suit. ”