Court may modify agreement providing for payment of attorney fees by adding term "reasonable" to fee language

Law Reporter, Apr 2001

ATTORNEYS

Kaminsky v. Kaminsky, 29 S.W.3d 388 (Mo. Ct. App. 2000).

A Missouri appellate court held that a trial court may modify a separation agreement that provides for the payment of attorney fees by adding the word "reasonable" to the fee language.

Here, a woman and her husband entered into a separation agreement during their divorce. The agreement provided that funds received from the sale of the marital home would be used for payment of the parties' attorney fees related to the divorce. The trial court found that the term "reasonable" was implicit in the language regarding attorney fees. The court, finding the wife's fees unreasonable and excessive, awarded her what it considered reasonable attorney fees.

The wife appealed, arguing that the trial court erred in modifying the separation agreement by adding the word "reasonable."

Affirming, the appellate court noted that, absent a finding of unconscionability or contravening public policy, a trial court should not interfere with a couple's nonmodifiable contract. However, as a matter of public policy, reasonableness is an implied term in every contract for attorney fees, the court said. Thus, if the wife cannot lawfully contract with her attorney for unreasonable fees, the court reasoned, then the wife and her husband cannot lawfully contract for payment of more than reasonable fees.

Additionally, the court found, the wife does not challenge the trial court's finding that her attorney fees were unreasonable. Rather, she only challenges the court's ability to limit the fees to those that are reasonable absent such a condition in the agreement. Once liability on a contract has been determined, the court explained, a trial court may calculate fees permitted under the contract. There is no dispute that under the agreement, fiends received from the sale of the home would be used for payment of the parties' attorney fees. Consequently, liability on the contract has been determined, and the trial court-considered an expert on the necessity, reasonableness, and value of an attorney's services-may award reasonable attorney fees as a matter of law.